Chandigarh

StateCommission

CC/451/2017

Arjun Behl - Complainant(s)

Versus

Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

Gaurav Bhardwaj, adv.

12 Oct 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	451 of 2017
Date of Institution	:	30.05.2017
Date of Decision	:	12.10.2017

 

Arjun Behl S/o Sh. Rajinder Lal Behl, R/o Behl Niwas, Near Sunder Cinema, Sapoor, Solan (H.P.).

 ……Complainant.

Versus

M/s Omaxe Chandigarh Extension Developers Ltd., SCO No.139-140, Sector 8-C, Chandigarh through its Managing Director.

              ....Opposite Party.

 

Complaint under Section 17 of the Consumer Protection Act, 1986

 

BEFORE: MR. DEV RAJ, PRESIDING MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

Argued by:   Sh. Gaurav Bhardwaj, Advocate for the complainant.

                    Sh. Sanjeev Sharma, Advocate for the Opposite     Party.

 

PER DEV RAJ, PRESIDING MEMBER

            The facts, in brief, are that the complainant expressed his interest for booking one plot of 321.09 sq. yds. in Omaxe Chandigarh Extension on 31.12.2010 by paying Rs.13,50,000/- as booking amount i.e. 25% of total consideration of Rs.58,59,620/-. The complainant further paid Rs.8,10,000/- on 01.07.2011 and Plot No.OCE/II/885 was allotted to him vide allotment letter (Annexure     C-3). The complainant also availed loan from LIC- Housing Finance Ltd. He further paid the following amounts to the Opposite Party vide receipts (Annexures C-4 to C-14):-

Sr. No.	Date of payment	Amount paid (Rs.)
1.	02.11.2012	1619327.00
2.	02.11.2012	58187.00
3.	21.01.2013	90000.00
4.	21.03.2013	50000.00
5.	06.02.2013	116407.00
6.	04.03.2013	498000.00
7.	12.03.2013	120000.00
8.	24.05.2013	263000.00
9.	07.06.2013	314924.00
10.	16.06.2014	288981.00

 

Thus, the complainant, in all, paid an amount of Rs.56,28,826/- to the Opposite Party. Vide letter dated 26.07.2014 (Annexure C-15) changed the allotted Plot No.885 to Plot No.1047-A and the area of the plot was also reduced from 321.09 sq. yards to 301.39 sq. yards. It was stated that the price was not reduced by the Opposite Party, though in reminder dated 01.06.2012 (Annexure C-15), the price was mentioned as Rs.55,05,020/-.

2.         It was further stated that the possession of the said plot was to be handed over to the complainant within 24 months from the date of allotment, which period expired in the year 2014. It was further stated that even till date, the Opposite Party has failed to offer possession of the plot to the complainant. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also, indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Party to refund  the amount of Rs.56,28,826/- alongwith interest @12% from the date fo deposit till actual payment is made; pay Rs.5,00,000/- as compensation for deficiency in service & unfair trade practice and Rs.55,000/- as litigation expenses.

3.           The Opposite Party, in its written statement, took up certain preliminary objections to the effect that the alleged dispute ought to be referred to Arbitration under Section 8 of the Arbitration & Conciliation Act, 1996 and also in terms of Clause 44 of the allotment letter/agreement dated 25.10.2012; that LIC Housing Finance Limited from whom the complainant had availed housing loan, being a necessary party, has not been impleaded as Opposite Party in the complaint; that this Commission lacks territorial jurisdiction to entertain the instant matter as the property is located in Punjab and registered office of the Opposite Party is at New Delhi and further as per Clause 44(c), only the Courts at Punjab and Delhi have the territorial jurisdiction to adjudicate upon the dispute; that this Commission does not have the pecuniary jurisdiction as the amount of claim together with interest exceeds Rs.One Crore; that the complainant does not fall within the ambit of definition of ‘consumer’ as defined under Section 2(1)(d) of the Act as he has purchased the unit, in question, for commercial purpose/speculation. 

 

 

4.         On merits, it was admitted that complainant, after verifying all the approvals, sanctions and documents relating to the title of the Opposite Party, had applied for a plot vide application (Exhibit OP-4). It was further stated that the complainant was provisionally allotted Plot No.885 in its project vide letter dated 01.03.2012 (Exhibit OP-5) and subsequently, Buyer’s Agreement between the complainant and the Opposite Party was executed on 25.10.2012 (Exhibit OP-6) for the sale of Plot No.OCE/II/885 in the said project, basic sale price whereof was Rs.57,79,620/- plus club cost, interest free maintenance security and other charges.

 

5.         It was further stated that since the complainant had availed housing loan from LIC Housing Finance Limited, therefore, Tripartite Agreement dated 11.10.2012 was also executed. It was further stated that effort was to be made to complete the development of the plot, in question, in terms of Clause 24(a) of the Agreement/Allotment Letter. It was further stated that it was agreed that the Opposite Party shall put its best efforts to complete the development/construction of the units within 18 months from the date of signing of the allotment letter or within an extended period of 6 months subject to making timely payment by the allottee(s). It was further stated that the aforesaid period of development was to be computed by excluding Sundays, bank holidays, enforced government holidays and the days of cessation of work at the site in compliance of order of any judicial; concerned state legislative body. It was further stated that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract. It was further stated that the complainant never approached the Opposite Party for possession of plot and never even enquired as to status of development etc., which implied that he had accepted the alleged delay. It was further stated that the complainant was habitual defaulter and had delayed all the installments, which he used to pay after repeated reminders. It was further stated that in the allotment letter dated 25.10.2012, vide clause 3, it was clarified that the allotment of the plot and area was tentative and the complainant never objected to letter dated 26.07.2014 (Exhibit OP-9) as the re-allotted plot No.1047-A is developed in all respects and completion certificate has also been granted. It was further stated that till date, the complainant has paid Rs.56,28,826/- out of which Rs.58,187/-was charged as penal interest. It was further stated that the Opposite Party was neither deficient, in rendering service nor did it indulge into unfair trade practice. The remaining averments, made in the complaint, were denied.

6.         The parties led evidence in support of their case.

7.         We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 

8.         It is evident on record that vide application (Exhibit OP-4), the complainant booked a plot in the project of the Opposite Party and he was provisionally allotted Plot bearing No.885 admeasuring 268.49 Sq. mts./321.09 sq. yards in “Omaxe New Chandigarh” at Mullanpur, Punjab, vide provisional allotment letter dated 01.03.2012 (Exhibit OP-5). Subsequently, allotment letter for residential plot bearing No.OCE/II/885, measuring 301.39 sq. yards/252 sq. mtr. was executed between the complainant and the Opposite Party on 25.10.2012 (Exhibit OP-6), which the complainant duly acknowledged by putting his signatures on it. It is also on record that vide letter dated 26.07.2014 (Annexure C-15), in lieu of Plot No.885, the complainant was re-allotted Plot No.1047-A having 301.39 sq. yards area in the above said project as per tentative allotment plan. Further as per statement dated 10.08.2017 (Exhibit OP-7), the Opposite Party received a total amount of Rs.56,28,826/-, refund whereof has been sought by the complainant, which included a sum of Rs.58,187/- on account of miscellaneous charges. Admittedly, possession of the plot, in question, was to be offered within 18 months or within an extended period of six months i.e. 24 months from the date of signing of the allotment letter, which period expired on 24.10.2014.

9.         It was argued by Counsel for the Opposite Party that in the face of existence of arbitration clause 44(c) in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. A specific miscellaneous application bearing No.760 of 2017 was also filed by the Opposite Party under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the matter to Arbitration. The said application was disposed of vide order dated 26.07.2017 holding that the question qua arbitration would be considered at the time of final arguments in the main case. It may be stated here that this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, noted that litigation in the Consumer Fora is cost effective. The complaint in the State Commission can be filed by making payment between Rs.2,000/- to Rs.4,000/- only. Whereas, as per principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of arbitrator’s fee. As per mandate of 1986 Act, a complaint is proposed to be decided within three months from the date of service of the other party. On the other hand, it is admissible to an Arbitrator to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it was observed that if the matter is referred to an Arbitrator, it would defeat the very purpose of the provisions of 1986 Act. Paras 26, 33 and 34 of the said order, inter-alia, being relevant, are extracted hereunder:-

“26.      To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

33.        The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

34.        Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

 

            Same is the ratio of recent judgment passed by three Judges Bench of Hon’ble National Commission on 13.07.2017 in case titled ‘Aftab Singh Vs. Emaar MGF Land Ltd. & Anr.’ III (2017) CPJ 270 (NC).

            In  view of the above, the plea taken by the Opposite Party, that in the face of existence of arbitration clause in the Allotment letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.

10.         The next objection taken by the Opposite Party is that LIC Housing Finance Limited, from whom the complainant had availed housing loan, being a necessary party, has not been impleaded as Opposite Party in the complaint. In this regard, it may be stated that LIC Housing Finance Limited is a Financier who has extended housing loan facility to the complainant to make part payment of the consideration towards the plot in question and it was not to provide any other service. Rather, it was the Opposite Party, who accepted the money from the complainant and was to give possession of the plot, in question, within the stipulated period. Therefore, impleading LIC Housing Finance Limited as an Opposite Party is not at all necessary. This objection raised by the Opposite Party stands rejected.

11.       The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. It is the case of the Opposite Party that since the property, in dispute, is in Punjab and its registered office is also at New Delhi, therefore, this Commission cannot adjudicate upon the present complaint. It was further stated that as per Clause 44(c), only the Courts at Punjab and Delhi have the territorial jurisdiction to adjudicate upon the dispute. According to Section 17 of the Act, a consumer complaint can be filed, by the complainant(s), before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, receipts dated 31.12.2010 and 01.07.2011 (Annexures C-1 & C-2) were issued from the regional office of the Opposite Party i.e. SCO-143-144, Sec-8C, Madhya Marg, Chandigarh – 160008. Similarly, receipts (Annexures C-5 to C-14) were also issued from the same address of Chandigarh. Further letter dated 26.07.2014 (Annexure C-15) and Reminder-1 dated 01.06.2012 (Annexure C-16) also bear the Chandigarh stamp of the Opposite Party. Since, as per documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The submission of the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

12.         No doubt, in the written version, an objection was also taken by the Opposite Party that as per Clause 44(c), only the Courts at Punjab and Delhi have the territorial jurisdiction to adjudicate upon the dispute and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

13.         In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D. Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to him, to file the complaint. The submission of the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

14.         An objection was raised by the Opposite Party that since the sum total value of unit and of reliefs claimed by the complainant, in his complaint, exceeds Rs.1 Crore and, hence, this Commission has no pecuniary jurisdiction to entertain this complaint. To say so, no calculation or else details as to how price of property and reliefs claimed exceed Rs.One Crore, have been given. The Counsel for the Opposite Party argued that it is not amount paid by the complainant i.e. Rs.56,28,826/- but the total price as per Annexure OP-8 viz. Rs.58,59,620/- alongwith interest @12% on the deposited amount, compensation of Rs.5 Lacs and litigation cost of Rs.55,000/- are to be clubbed. It may be stated here, to clarify the position, that Counsel for the complainant submitted calculation sheet, as per which, the sum total of the value of property i.e. Rs.58,59,620.00 (Annexure OP-8), interest claimed on the deposited amount of Rs.56,28,826.00 @12% p.a. up-to the date of filing of the present complaint i.e. Rs.34,12,226.00, compensation (Rs.5,00,000.00) & litigation cost (Rs.55,000.00), comes to Rs.98,26,846.00, which is less than Rs.1 Crore. Since the sum total of price of the property and reliefs claimed comes to Rs.98,26,846/-, which is less than Rupees One Crore, the complaint is within pecuniary jurisdiction of this Commission. The objection taken by the Opposite Party, therefore, being devoid of merit, fails and the same stands rejected.

15.         To defeat claim of the complainant, the next objection raised by the Opposite Party was that since the complainant had purchased the plot, in question, for investment/commercial purpose i.e. for resale, as and when there was escalation in the prices of real estate, as such, he would not fall within the definition of consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. It may be stated here that in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainant, by way of investment, with a view to earn profits, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited”, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

 

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

 

The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Party, in the written reply, therefore, being devoid of merit, is rejected.  

16.              The next question, which falls for consideration, is, as to whether, there is delay in offering/delivering possession of the plot, in question and if so, whether the complainant is entitled to refund of the amount  deposited by him. Admittedly, as per Clause 24(a) of the Allotment Letter/Agreement, the Opposite Party undertook to complete the development work within 18 months or within extended period of six months, from the date of signing of the said Allotment Letter/Agreement. The Opposite Party has stated that period was to be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body. Apparently, for seeking six months extension beyond 18 months or beyond six months extended period, the Opposite Party owes an explanation, if the delay was on account of force majure conditions but nothing by way of cogent evidence to this effect has been placed on record. Thus, when no explanation for extension of six months period has been furnished, the Opposite Party at the most could be allowed one out of the two benefits i.e. either six months extension beyond 18 months or period on account of Sundays/Holidays and cessation of work etc. This Commission in Consumer Complaint No.153 of 2015 titled ‘Mr. Madan Lal Taneja and another Vs. M/s Omaxe Chandigarh Extension Developers P. Ltd.’ decided on 03.11.2015, facts of which were almost identical, held that Opposite Parties were not entitled to any benefit on account of Sundays, Bank Holidays etc. In the instant case, it is an admitted fact that the Opposite Party is unable to deliver possession of the plot, in question, for want of development and basic amenities etc.  and firm date of delivery of possession of the plot, could not be given to him (complainant). Promised date to deliver possession of the plot was 24.10.2014 and now it is October 2017. Even at the time of arguments, no commitment was made by the Opposite Party, as to on which date, possession of the developed plot, can be delivered to the complainant. It was only said that the Opposite Party is making best efforts, to complete the development work.  The complainant cannot be made to wait for an indefinite period, for delivery of possession of the plot purchased by him. Non-delivery of possession of the plot, in question, by the stipulated date, is a material violation of the terms and conditions of the Allotment Letter/Agreement, on the part of the opposite party. This Commission in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, in the light of law settled by Hon’ble National Commission in such cases, held that the complainant is entitled to refund of the amount deposited with the Opposite Party. Relevant Paras of the aforesaid judgment read thus:-

 

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the  complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the  complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.”

 

Recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015 decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder while holding as under:-

“I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and, therefore, is entitled to refund the entire amount paid by him alongwith reasonable compensation, in the form of interest.”

 

However, in the present case, the situation is worst, as possession has not been even offered to the complainant, what to speak of delay in offer thereof. In view of above, it is held that since there was a material violation on the part of the Opposite Party, in not offering and handing over possession of the developed plot by the stipulated date or even till date, the complainant was at liberty to seek refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint. Therefore, the complainant is held entitled to refund of the amount alongwith interest from the dates of respective deposits.

17.         As far as the plea taken by the Opposite Party regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not the case of the Opposite Party, that it was ready with possession of the constructed unit, to be delivered to the complainant, by the stipulated date i.e. 24.10.2014, but it was he (complainant) who wanted to rescind the contract, on account of some inevitable circumstances/financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the Opposite Party, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Party, in this regard, has no legs to stand and is accordingly rejected.

18.         In view of above facts of the case, the opposite party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.

19.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.56,28,826/-, was paid by the complainant, without getting anything, in lieu thereof. The complainant also raised loan from LIC Housing Finance Ltd., on which, he has been paying interest. The said amount has been used by the opposite party for its own benefit. There is no dispute that for making delayed payments, the opposite party was charging heavy rate of interest 18% p.a. for the first month and thereafter @24% p.a., as per Clause 14 of the Allotment Letter/Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335. In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.56,28,826/- alongwith interest, from the respective dates of deposits till realization.  

20.         No other point, was urged, by the contesting parties.

21.        For the reasons recorded above, the complaint is partly accepted, with costs. The opposite party is held liable and directed as under:-

1. To refund the amount Rs.56,28,826/-, to the complainant, alongwith interest @11% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.1,50,000/- , for causing mental agony and physical harassment, and Rs.33,000/- as cost of litigation, to the complainant.
3. The payment of awarded amounts mentioned at sr.nos.(i) to (ii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @13% p.a., instead of @11%, from the date of filing the complaint, and interest @11% p.a., on the amounts mentioned at sr.nos.(ii), from the date of filing of this complaint, till realization.

22.        Since the complainant has availed loan facility from LIC Housing Finance Ltd., for making payment of installments towards the said plot, it (LIC Housing Finance Ltd.) will have the first charge on the amount payable, to the extent, the same is due to be paid by him  (complainant).

23.        Certified Copies of this order be sent to the parties, free of charge.

24.        The file be consigned to Record Room, after completion.

Pronounced.

12.10.2017.

[DEV RAJ]

PRESIDING MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

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