Chandigarh

StateCommission

CC/477/2017

Dr. Asha Sharma - Complainant(s)

Versus

Puma Realtors Pvt. Ltd. - Opp.Party(s)

Narender Kaur, Adv.

02 Feb 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	477 of 2017
Date of Institution	:	09.06.2017
Date of Decision	:	02.02.2018

 

1. Dr. Asha Sharma w/o Sh. Lokesh Punj,
2. Sh. Lokesh Punj s/o Sh. H. K. Punj

Both R/o H.No.812, New Millenium Apartments, Sector 23, Dwarka, New Delhi 110077.

 ……Complainants

V e r s u s

1. Puma Realtors Pvt. Ltd. a company incorporated under the Companies Act, 1956  (An IREO Group Company) having its Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Sarbari, New Delhi 110074 and Corporate Office at SCO No.6-8, First and Second Floor, Sector 9-D, Chandigarh 160009 (India) through its Managing Director.
2. Anupam Nagalia, Director of Puma Realtors Pvt. Ltd., a company incorporated under the Companies Act 1956 (An IREO Group Company), Corporate Office at SCO No.6-8, First and Second Floor, Sector 9-D, Chandigarh 160009 (India).
3. Mr. Amrick Singh Gambhir, Director of Puma Realtors Pvt. Ltd., a company incorporated under the Companies Act 1956 (An IREO Group Company), Corporate Office at SCO No.6-8, First and Second Floor, Sector 9-D, Chandigarh 160009 (India).

….. Opposite Parties.

Argued by: Ms. Narender Kaur, Advocate for the complainants.

                 Sh. Rohit Tanwar, AGM (Legal) of the Opposite Parties.

 

Complaint case No.	:	516 of 2017
Date of Institution	:	05.07.2017
Date of Decision	:	02.02.2018

 

Mrs. Pardeep Brar wife of Sh. Jaswinder Singh Brar, Aged 43 years, presently at 11, Palmerstone Court, New Auckland, Queensland 4680, Australia, through her General Power of Attorney, Sh. Amarjit Singh Brar son of Late Sh. Pakhar Singh Brar, resident of House No.181, Phase 4, Mohali – 160059.

 

……Complainant.

V e r s u s

1. M/s. Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi – 110074 through its Chairman/M.D./ Director/Authorized Signatory.

2^nd address:

Corporate and Sales Office at SCO No.6-8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh 160009, through its Managing Director/Director/Authorized Signatory.

2. Amrick Singh Gambhir, Director of M/s Puma Realtors Private Limited, a Company incorporated under the Companies Act 1956 (An IREO Group Company), Corporate and Sales Office at SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh – 160009.

.. Opposite Parties.

Argued by:

 

Sh. Deepak Aggarwal, Advocate for the complainant.

Sh. Rohit Tanwar, AGM (Legal) of the Opposite Parties.

 

Complaint case No.	:	564 of 2017
Date of Institution	:	25.07.2017
Date of Decision	:	02.02.2018

 

Ajay Gandotra S/o Sh. N. K. Gandotra, R/o H.No.102, UNO Lane, Tlab Tillo, Jammu (J&K).

 ……Complainant.

V e r s u s

Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh 160009 (India) through its Authorised Signatory/Directors Sh. Anupam Nagalia & Sh. Amrick Singh Gambhir.

2^nd Address:-

Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi – 110074.1

….. Opposite Party.

Argued by:

 

Sh. Gaurav Bhardwaj, Advocate for the complainant.

Sh. Rohit Tanwar, AGM (Legal) of the Opposite Party.

 

Complaints under Section 17 of the Consumer Protection Act, 1986.

 

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

 

PER DEV RAJ, MEMBER

            After hearing arguments on 19.01.2018, it was agreed between the Counsel for the complainant(s) and Sh. Rohit Tanwar, AGM (Legal) of the Opposite Parties that the facts involved in the above three complaints, by and large, are the same and therefore, the aforesaid complaints can be disposed of, by passing one consolidated order. To dictate order, facts are being taken from complaint bearing No.477 of 2017, titled as ‘Dr. Asha Sharma & Anr. Vs. Puma Realtors Private Limited & Ors.’.

2.         The facts, in brief, are that on 20.05.2011, the complainants were allotted Unit No.CCD-04-002, 4^th Floor in Cassia Court D, measuring 1233 sq. Ft. in the Group Housing Project of the Opposite Parties i.e. IREO RISE, vide allotment letter (Annexure C-1). The complainants paid an amount of Rs.36,94,637/-  i.e. 95% as against  the total sale consideration of the unit i.e. Rs.39,07,117/- and balance payment was to be paid by the complainants at the time of possession and registration of sale deed. Apartment Buyer’s Agreement was signed between the parties on 15.11.2011 (Annexure C-2).

3.         As per Clause 13.3 of the aforesaid Agreement, physical possession of the unit, in question, was to be handed over by Opposite Party No.1 within a period of 30 months from the date of execution of the same i.e. by 15.05.2014. It was further stated that for the delayed period in offering possession, Opposite Party No.1 was liable to pay penalty @Rs.7.50 per sq. ft. per month. The complainants visited the site in January 2014 but were shocked to see that there was no progress in the project. They again visited the site in April 2014 but still there was no development. It was further stated that though there was no development, yet Opposite Party No.1 sent a demand notice dated 31.05.2014 to the complainants asking to deposit installment of Rs.4,14,220.55, which they deposited on 28.06.2014 vide receipt (Annexure C-15).

4.         Again on visiting the site in July 2015, the complainants found no development at the site. The complainants approached Opposite Party No.1 a number of times to know about the status of delivery of possession of the flat but every time, Opposite Party No.1 failed to give any positive response. It was stated that neither there was provision of electricity connection nor water connection was laid down. It was further stated that the complainants were shocked to know that electricity shall be provided by Opposite Party No.1 at exorbitant price. It was further stated that even various amenities like solar water heating for kitchen, multipurpose hall, swimming pool, fully equipped Gym, badminton and basketball courts, kids play area, jogging tracks, visitors car parking, intercom facility and CCTV camera, which were promised in the Agreement, have not been started at the project site. It was further stated that external development of the area where the flat, in question, is situated, had also not been completed by 2017. It was further stated that Opposite Party No.1 had promised to provide modular kitchen and admittedly, lower portion of the modular kitchen has been provided but the upper portion has not been provided. It was further stated that there is no provision for split ACs, which is in contradiction of the promised facilities. It was further stated that Opposite Party No.1 for its convenience constructed approximately 70 flats over the existing tower thereby enriching itself by approximately 60/70 crores, which has caused lot of inconvenience to other allottees and such construction shall put burden upon the existing common facilities.

5.         It was further stated that the complainants are ready to deposit the remaining amount of 5% as agreed between the parties, subject to handing over possession of the flat.  It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service and indulgence into unfair trade practice.

6.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties to hand over possession of the unit, in question, complete in all respects, with all amenities, within a period of three months; pay penalty as per Clause 13.4 of the Agreement; pay interest @15% on the deposited amount from respective dates of deposits; make provision for electricity, water and sewerage from the Government; pay Rs.7,00,000/- as compensation on account of mental agony and physical harassment and Rs.70,000/- as cost of litigation.

7.         The Opposite Parties, in their written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.34 in the Apartment Buyer’s Agreement dated 15.11.2011; that since the present complaint related to enforcement of an agreement to sell/purchase of a residential apartment i.e. an immovable property and hence, was not covered under the Act; that the complainants did not hire any services of the Opposite Parties, as the parties did not enter into any contract for hiring the services; that this Commission has no territorial jurisdiction on account of existence of Clause 36 in the Agreement and that the relief claimed is beyond Section 14(1)(d) of the  1986 Act. 

8.         On merits, the Opposite Parties, while admitting the factum of allotment of the unit, in question, in the names of the complainants and execution of Apartment Buyer’s Agreement on 15.11.2011, stated that total sale consideration price agreed to be paid by the complainant was Rs.39,22,484.49. It was further stated that the complainants were informed about the revised service tax vide letter dated 12.04.2012 (Annexure OP-11). It was further stated that in terms of Clause 13.4 of the Agreement, the complainants duly agreed to receive liquidated damages from the end of the grace period i.e. 30 months plus 6 months, till possession is actually offered.  It was further stated that the complainants vide Clause No.13.3 of the Agreement agreed that the starting period for 30 months shall be date of the said Agreement or approval of the building plans and/or fulfillment of precondition imposed thereunder, which ever was later. It was further stated that building plans were approved on 18.01.2012 (Annexure OP-12) and that being so, the starting period for 30 months would not be the date of the said Agreement but would be 18.01.2012.

9.         It was further stated that payment against demand raised vide demand note dated 31.05.2014 for making payment of Rs.4,14,220.55, was made by the complainants without any delay and without any objection or reservation. It was further stated that as agreed between the parties, in case of failure of Opposite Party No.1 to deliver possession within aforesaid period of 36 months, the complainant was entitled to the liquidated damage @Rs.7.50 per sq. ft. per month till possession of the apartment is actually offered. It was further stated that the delay compensation @Rs.7.50 per sq. ft. of the super area was to be adjusted and reduced from the last and final installment, which would be demanded at the time of offer of possession. It was further stated that Opposite Party No.1 after development and construction of the unit, in question, has already been issued the partial completion certificate dated 30.06.2017 by the authorities and accordingly, Opposite Party No.1 has already offered possession of the apartment.

10.       It was further stated that Opposite Party No.1 vide application dated 26.11.2013 applied for approval of electrical layout plan and grant of NOC to the PSPCL after submitting requisite details; NOC by PSPCL was granted on 08.07.2015; approval for commissioning of electrical installations was accorded on 07.08.2015; Opposite Party No.1 applied for release of electric connection for IREO Rise project on 27.08.2015; PSPCL granted feasibility clearance dated 20.11.2015 for release of load/connection to the project and Bank Guarantee to the tune of Rs.3,24,10,301/- was submitted to PSPCL on 22.03.2016. The allegation that Opposite Party No.1 shall keep on supplying electricity at exorbitant rates was denied.

11.       It was further stated that the main entrance of IREO Rise group housing project of Opposite Party No.1 directly abuts the sector road, which has already been constructed. It was further stated that the complainant is misreading letter dated 30.12.2015. It was further stated that Opposite Party No.1 is in progress of obtaining approvals for additional areas and duly agreed under Clause 10.10 and 22.3 of the Agreement that Opposite Party No.1 shall be entitled to make additional construction to the extent permitted by the competent authorities under the relevant laws. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

12.       The complainants filed rejoinder, wherein they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.

13.       The complainants, in support of their case, submitted their separate affidavits, by way of evidence, alongwith which, a number of documents were attached.

14.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Rajiv Bhatia, their Authorised Representative, by way of evidence, alongwith which, a number of documents were attached. 

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

16.       It is evident, on record, that vide provisional allotment offer letter dated 20.05.2011 (Annexure    C-1), the complainants was allotted Apartment No.CCD-04-002 on Fourth Floor, Cassia Court – D Tower in the project of Opposite Parties i.e. “Ireo Rise”, situated in Sector 99, SAS Nagar, Mohali, having tentative super area of 1233 sq. ft. together with 1 no. parking space, forming indivisible part thereof and Apartment Buyer’s Agreement was executed between the complainants and the Opposite Parties on 15.11.2011 (Annexure C-2/OP-2). As per Annexure-IV, Payment Plan (at Page 148 of the written statement), the basic sale price of the unit was Rs.36,52,768.50. The total sale consideration of the unit, in question, as per aforesaid payment plan, including External Development Charges (EDC) Rs.1,23,300/-, IFMS charges Rs.36,990/- & service tax of Rs.1,09,425.99, is Rs.39,22,484.49. The payment against the aforesaid unit was to be regulated as per Payment Plan, Annexure IV. The complainants made payment in the sum of Rs.36,94,637.83 as is apparent from latest accounts statement (Annexure OP-4). In terms of Clause 13.3 of the Agreement, since building plans were approved on 18.01.2012, 30 months  period for handing over

possession, expired on 17.07.2014. Admittedly, possession of the unit has been offered to the complainants on 30.06.2017 dispatched on 20.07.2017, after about a month after filing of the instant complaint on 09.06.2017 vide notice of possession dated 30.06.2017 (Annexure OP-4). The Opposite Parties have specifically denied the allegation of supplying electricity at exorbitant rates.

17.       The Opposite Parties, while filing their written statement, contended that Opposite Parties No.2 & 3 are the Directors of Opposite Party No.1 and have been wrongly impleaded as they have no liability towards the complainants as they neither executed the Buyer’s Agreement nor they received any money from the complainants. It may be stated here that a Company acts through its Director(s). The fact of Opposite Parties No.2 & 3, being Directors of the Company, has neither been disputed nor has it been pleaded that they are not the active Directors of the Company. In view of this, for failure of Opposite Party No.1, they (Opposite Parties No.2 & 3) are also equally responsible. The objection raised, thus, being not sustainable, stands rejected.

18.        The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause No.34 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. 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.”

            In  view of the above, the plea taken by the Opposite Parties, that in the face of existence of arbitration clause 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, being devoid of merit, is rejected.

19.         Another objection raised by Counsel for the Opposite Parties was that since the complainants did not buy goods and did not hire any services, and were seeking enforcement of the Agreement in respect of immovable property, therefore, only a Civil Court can decide the complaint, and consumer complaint was not maintainable. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the unit, in question, in the manner, referred to above. According to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to hand over possession of the apartment, in question, within a period of thirty months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment of the preconditions, whichever is later (commitment period).  Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

 

 

 

              From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act provides an alternative remedy. Even if, it is assumed that the complainants have remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of ‘consumer’, as stated above. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

20.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from Clause 33 of the Agreement, that the parties had agreed that “Hence this Agreement shall be deemed to have been executed at Chandigarh even if the Proposed Allottee has prior thereto executed this Agreement at any place(s) other than Chandigarh”, meaning thereby that the Agreement in question, was deemed to be signed/executed at Chandigarh. Not only this, receipts (Annexures C-3 to C-13 & C-15), Demand Note (Annexure C-15) and letter dated 30.12.2015 (Annexure C-16)  were issued by Opposite Party No.1 to the complainants, from its Chandigarh Office i.e. SCO 6-7-8, 1st & 2nd Floors, Sector 9-D, Chandigarh. Since, as per Clause 33 of the Agreement and the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.

21.         No doubt, in the written version, an objection was also taken by the Opposite Parties, that as per Clause 36 of the Agreement, the Courts at Mohali and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, 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 complainants, 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.

22.         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 complainants 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 them, to file the complaint. The submission of Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

23.       A specific objection, as regards the complainants being not consumers as they booked the apartment not for their personal use but for investment/commercial purposes, has been taken. It may be stated here that in the opening paras 1 & 2 of the complaint, the complainants have specifically stated that they are husband and wife and are retirees and considering the quality of life and the facilities available in Chandigarh, they had always wished to own a residential accommodation in the Tricity to spend their retired life. Further, it has been stated that they are blessed with two children and they had been looking for a flat for themselves and their family members as they wish to spend their retired life in the Tricity. At the same time, there is nothing, on record, to show that the complainants are property dealer(s), and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof.  Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion i.e. simply saying that the complainants being investors, did not fall within the definition of a consumer, 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., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, 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. 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 principle of law, laid down, in the aforesaid cases is fully applicable to the present case. The objection raised, being devoid of any substance, stands rejected.

24.       The next question, which falls for consideration, is, as to whether the construction of approximately 70 flats over the existing tower(s) by Opposite Party No.1 is at the cost of existing common facilities/amenities and against the agreed terms and conditions. Relevant clauses 22.3 and 10.10 in the Apartment Buyer’s Agreement read as under:-

“22.3      The Proposed Allottee agrees that the Company shall be entitled to connect the electric, water, sanitary and drainage fittings on any additional structures/storeyes with the existing electric, water, sanitary and drainage fittings. The Proposed Allottee further agrees and undertakes that it shall not at any time before or after taking possession of the said Apartment, have any right to object to the Company constructing or continuing with the construction of any other building(s)/ structures in IREO-RISE or putting up additional floors to any of the exiting towers/ Buildings in IREO-RISE or undertaking modification of any unsold apartment/units/ areas therein. The Proposed Allottee further agrees that it shall not claim any compensation or withhold the payment of maintenance and other charges, as and when demanded by the Company on the ground that the infrastructure required for IREO-RISE is not yet complete, or on any other ground whatsoever.

 

10.10      The Proposed Allottee hereby expressly agrees and consents that the Company shall have the absolute right to make additional construction, whether on account of increase in FAR or better utilization of the said Land or for any other reason anywhere in IREO-RISE, to the extent permissible by the government or the Competent Authority under the Act. The Company shall have the absolute and unfettered right to transfer such additional construction in any manner whatsoever as the Company may in its absolute discretion think fit. The Company and its transferees of such additional construction shall have the same rights as the Proposed Allottee with respect to IREO-RISE including the right to be member of the Society of Apartment Owners to be formed under the Apartment Act (“RWA”) and the right to use of the Common Areas and other common amenities of IREO-RISE.”

 

            In view of aforesaid, we are inclined to agree with Opposite Party No.1 that construction of additional flats is in accordance with the specific provision in the Apartment Buyer’s Agreement. The objection of the complainants is, therefore, not tenable. Opposite Party No.1 is entitled to raise construction of additional flats in terms of provisions in the agreement.

25.       The next question, which falls for consideration, is, as to whether Opposite Party No.1, by not providing Split AC fittings in all rooms including bedrooms and complete modular kitchen, were deficient in rendering service. As per Annexure I, Opposite Party No.1 was to make provision for Split AC and modular kitchen. The provision and specifications, so mentioned in Annexure-I appended to the Agreement, at Pages 144 and 145 of the written statement, qua the aforesaid two facilities, are extracted hereunder:-

KITCHEN	MODULAR KITCHEN	Fitted modular Kitchen, SS Sink, CP fittings, provision for RO system, built-in hob/chimney.
	COUNTERTOP	Granite
AIR CONDITIONING		Provision for Split AC in all bedrooms, drawing & dining room.

 

Admittedly, the provision in accordance with the specifications in the Apartment Buyer’s Agreement was not made. It was argued on behalf of Opposite Party No.1 that it was nowhere agreed that modular kitchen comprising both upper and lower cabinets/cupboards was to be provided, and that it was nowhere mentioned that portion above the working slab is a must for a modular kitchen. Opposite Party No.1 cannot draw its own conclusion that modular kitchen would be complete, even if the cup-boards are provided only below the slab. Had it been so mentioned in the specifications, the position would have been different. When it is clearly mentioned that modular kitchen is to be provided, it would mean modular kitchen with cup-boards below and above the slab. Opposite Party No.1 has also failed to clarify, why the provision of Split AC was not made. Thus, Opposite Party No.1 is liable to provide modular kitchen with cup-boards upper the slab also and so also the provision for split AC in the bedrooms and drawing & dining room.

26.       The next question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainants. According to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment  of   the   preconditions   whichever   is   later (commitment period). The building plans were approved on 18.01.2012 as is evident from Annexure OP-12 i.e. after execution of Buyer’s Agreement on 15.11.2011. Computing 30 months from 18.01.2012, commitment period for handing over possession was up-to 17.07.2014. On account of force majeure circumstances, referred to above, the Opposite Parties were entitled to advantage of 180 days grace period after expiry of 30 months for unforeseen delays in obtaining the occupation certificate etc. No cogent evidence or justification for seeking advantage of 180 days grace period has been placed on record by the Opposite Parties. Admittedly, possession of the unit, in question, was offered to the complainants vide notice of possession dated 30.06.2017 (Annexure OP-4), which was sent to the complainants on 21.07.2017, as is evident from Proof of Delivery (at Page 175 of the written statement). No doubt, Opposite Party No.1 was duty bound to hand over possession within 30 months i.e. by 17.07.2014. Clearly, there is delay of more than three years in offering/delivering possession. The Counsel for the Opposite Parties argued that considering the fact that complainants are seeking compensation under Clause 13.4, the due date for possession is to be taken as 30 months + 6 months i.e. 17.01.2015 and not 17.07.2014. It may be stated here that the complainants are not being granted any compensation under Clause 13.4 and the complainants while seeking compensation have not sought the same w.e.f. 17.01.2015. The plea being devoid of merit stands rejected. By making a misleading statement, that possession of the unit, was to be delivered within the period as discussed above, and by not abiding by the commitment made, Opposite Party No.1 was not only deficient, in rendering service, but also indulged into unfair trade practice.

27.       In the offer of possession letter dated 30.06.2017 (admittedly dispatched on 21.07.2017), the complainants were given 45 days’ time to make payment of Rs.35,653.84 and for completion/ submission of documents and upon the complainant doing so, Opposite Party No.1 was to take another 30 days for final touches/finishing works in the apartment. Thus, the delay in delivering possession would come up-to (21.07.2017 + 45 days + 30 days) 05.10.2017.

28.            The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for delay in delivering physical possession of the unit beyond the time stipulated in the Agreement. It may be stated here that in case titled Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)         xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.

(3)   No separate compensation would be payable to the complainants either towards the rent if any paid by them or for the mental agony and harassment which they have suffered on account of the failure of the opposite party to perform its contractual obligation.”

29.      No doubt in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainants for delay, but it does not mean that even in the event of inordinate delay, that too without justified reasons, in completing the construction and delivering the possession, the complainants would be entitled to meagre compensation of Rs.7.50 per sq. ft. of super area, which is much less than the bank rate for loan or fixed deposit. If the argument of Opposite Party No.1 is to be accepted, it would lead to an absurd situation and would give an unfair advantage to the unscrupulous builder, who might utilize the consideration amount meant to finance the project, by the buyer, for its other business venture, at nominal interest of 3 to 4 per cent, as against much higher bank lending rates. This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act.

30.       Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the case, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 18.07.2014 till 25.10.2017, would meet the ends of justice. However, since Opposite Party No.1, while offering possession, gave credit of Rs.2,75,575.50 on account of delayed compensation, this amount shall be reduced from the compensation amount arrived at by granting 12% interest on the deposited amount(s) for the delay period.

31.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them. The    Opposite Parties, relying upon the judgment of Hon’ble Apex Court in case titled “Godfrey Phillips India Ltd. Vs. Ajay Kumar”, AIR 2008 SC 1828, pleaded that compensation could be granted if same is supported by pleadings. The judgment relied upon is of no help to the Opposite Parties as in that case, the complainant had filed a complaint in the public interest. It may be stated that Hon’ble Apex Court in Balram Prasad Vs. Kunal Shah, (2014) 1 SCC 384, dealt with the plea urged on behalf of the complainant (in the said case) that the National Commission was wrong in rejecting different claims on the ground that same had not been made in the   pleadings. The Hon’ble Apex Court, while observing that the claim for enhancement of compensation by the claimant was justified, relied upon its judgment in Nigamma and Anr. Vs. United India Insurance Company Ltd., (2009) 13 SCC 710, and held that the Court is duty-bound and entitled to award “just compensation”, irrespective of the fact whether any plea on that behalf was raised by the claimant or not. In the complaint in hand, the complainants have specifically prayed for compensation of Rs.7 Lacs towards mental agony and physical harassment etc. caused to them. Clearly possession of the unit, in question, was offered to the complainants on 30.06.2017 i.e. after a delay of more than 3 years, on account of which, they (complainants) suffered mental agony and physical harassment. The compensation in the sum of Rs.7 Lacs claimed by the complainants is, however, on the higher side. Compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.1,50,000/-, if granted, would be adequate to serve the ends of justice.

32.       In Complaint bearing No.564 of 2017, the unit, in question, was allotted to the complainant, namely, Sh. Ajay Gandogra on 21.09.2011 and Apartment Buyer’s Agreement was executed between him and the Opposite Party on 08.11.2011. Thus, in terms of Clause  13.3 of the Agreement, computing 30 months from the date of approval of building plans i.e. 18.01.2012 (Annexure OP-24), the possession of the unit, in question, was to be delivered by the Opposite Party by 17.07.2014 but the same still not been offered to the complainant. Even the completion/occupation, which was applied in November 2016 (Annexure OP-14) has still not been received by the Opposite Party. Only partial completion certificate has been issued vide letter dated 30.06.2017 (Annexure OP-15). Therefore, in this case also, besides other reliefs qua modular kitchen and Split fittings, as awarded in complaint bearing No.477 of 2017, the complainant is entitled to possession of the unit, in question, and award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 18.07.2014, till delivery of possession of the unit.

33.       The complainant, in Para 5 of his complaint, has admitted that he paid a total sum of Rs.38,84,421/- as against the total sale consideration of Rs.50,25,270/- excluding other charges. This facts stands corroborated from the Account Statement (Annexure OP-8), placed on record by the Opposite Party, wherein the amount shown to have been received is Rs.38,84,421/- and the net due amount is Rs.19,00,028.60, which also includes a huge delayed interest amount of Rs.7,10,307.95 against the complainant for not making the payment of installment(s) in time. It is also on record that the complainant was also issued reminders, final notice and last and final opportunity letter to remit the installment(s) in time but he failed to do so. Therefore, delay in payment of installment(s) partly contributes to delay in completion of unit. Therefore, the complainant is not entitled to same amount of compensation as this Commission grants in such cases.  In the facts and circumstances of the case, compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.1,00,000/-, if granted, would be adequate to serve the ends of justice.

34.       In Complaint bearing No.516 of 2017, the complainant has sought refund of the deposited amount of Rs.49,95,566.27 alongwith interest @16% p.a. from the respective dates of deposits alongwith compensation of Rs.3 Lacs on account of mental agony, physical harassment, deficiency in service, unfair trade practice and financial loss besides Rs.50,000/- as cost of litigation. The core question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainant and whether the complainant is entitled to seek refund of the amount deposited by her alongwith interest. The unit, in question, was originally allotted to one Mr. Rajesh Jain vide provisional allotment offer letter dated 14.11.2011 (Annexure C-2) and Apartment Buyer’s Agreement between him (Rajesh Jain), Mr. Arun Jain and Opposite Party No.1 was executed on 02.01.2012 (Annexure C-3). The complainant is a subsequent allottee as the nomination/assignment rights of the unit, in question, were transferred in her favour on 12.04.2013 vide letter (Annexure C-5). As per Clause 13.3 of the Apartment Buyer’s Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment of the preconditions imposed thereunder whichever was later. Admittedly, the building plans were approved on 18.01.2012 after 02.01.2012 when agreement was executed; 30 months period for delivering possession expired on 17.07.2014. On account of force majeure circumstances, referred to above, the Opposite Parties were entitled to advantage of 180 days grace period after expiry of 30 months for unforeseen delays in obtaining the occupation certificate etc. No cogent evidence or justification for seeking advantage of 180 days grace period has been placed on record by the Opposite Parties. The Opposite Parties even did not apply for occupation certificate during the aforesaid period of 180 days. Clause 13.4 of the Agreement envisages that in case of delay beyond the period as referred to above, in handing over possession, the Opposite Parties shall be under obligation to pay penalty amount for the delayed period. Computing 30 months from the date of approval of building plans, on 18.01.2012, at the maximum, possession was to be delivered to the complainant by 17.07.2014. Even if, it is accepted that the Opposite Parties are entitled to further 12 months of extended delay period, as per Clause 13.5 of the Agreement, date of handing over possession came to an end on 17.07.2015. Admittedly, the possession, in the instant case, was offered to the complainant on 30.06.2017 vide notice of possession (Annexure OP-11), dispatched on 21.07.2017 i.e. after expiry of stipulated period and during the pendency of the instant complaint, which was filed on 05.07.2017. The complainant had already paid an amount of Rs.51,46,729.56 as against the sale consideration of Rs.54,68,771.15, as per account statement annexed with the possession letter.

35.       The Opposite Parties failed to abide by their commitment to offer possession of the unit, in question, by the stipulated date as per Agreement. The Opposite Parties were duty bound to hand over possession within 30 months i.e. by 17.07.2014 or after grace period of 180 days. By making a misleading statement, that possession of the unit, was to be delivered within the maximum period of 30 months from the date of execution of the Agreement/approval of building plans and within further extended period of 180 days and thereafter during the extended delay period of 12 months, and by not abiding by the commitment made, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice. Non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement, on the part of the Opposite Parties. This Commission in case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, relying upon the judgments rendered by the Hon’ble National Commission, ordered refund to the complainant while holding as under:-

“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  complainants 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.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Further 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.”

              In view of the above, it is held that since there was a material violation on the part of the Opposite Parties, in not handing over possession of the unit by the stipulated date, the complainant is entitled to refund of the amount deposited, alongwith interest and compensation by way of filing the instant complaint.

36.           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.51,46,729.56 was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. The Opposite Parties were charging heavy rate of interest @15% per annum, with quarterly rests, as per Clause 7.3 of the Agreement, for the period of delay in making payment of installments by the complainants.  It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, alongwith interest @13% p.a. (simple) (less than the rate of interest charged by the Opposite Parties). However, since rights in the plot were assigned in favour of the complainant on 12.04.2013, in view of ratio ofthis Commission judgment titled Darbara Singh and ors. Vs. Emaar MGF Land Limited and Ors., Complaint Case No.147 of 2016 decided on 22.08.2016, on the amount(s) deposited by the original allottee(s) up-to 12.04.2013, interest shall be payable w.e.f. 12.04.2013 and for the amount(s) deposited by the complainant w.e.f. 12.04.2013 onwards, they shall be entitled to interest from the dates of respective deposits.

37.       It may be stated here that in case, the complainant had obtained any loan for making part payment towards the price of the unit, in question, and in case, the Opposite Parties have incurred liability of interest on the disbursed loan amount for 24 months, in terms of Tripartite Agreement, if any, then, the complainant shall not be entitled to interest on the disbursed loan amount for the said period of 24 months.

38.       In our opinion, Compensation, for mental agony and physical harassment, in the sum of Rs.1,50,000/-, if granted, to the complainant, would be adequate to meet the ends of justice.

39.       It may be stated here that in connected complaints bearing Nos.516 and 564 both of 2017, the objection qua the complainant(s) being not consumer under Section 2(1)(d)(ii) of the Act as the properties were purchased for commercial purpose and not for personal use, stands decided in favour of the complainants, in view of observations made in Para 23 of this judgment.

40.         No other point, was urged, by the Counsel for the parties.

41.          For the reasons, recorded above, all the complaints bearing Nos.477, 516 & 564, all of 2017, are partly accepted with costs.

Complaint No.477 of 2017

 

42.         In this case, the Opposite Parties are, jointly and severally, held liable and directed as under:-

1. To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, including modular kitchen with cupboards above the slab also and provision for Split AC in all bedrooms, drawing & dining room, to the complainants, within a period of 30 days, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against the complainants and submission of required documents.
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc. by the complainants.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount(s), to the complainants, from 18.07.2014 to 05.10.2017 [w.e.f. 18.07.2014 in respect of deposits made up-to 18.07.2014 and from respective dates of deposits in respect of amount(s) paid after 18.07.2014], within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., from the date of default till realization.

      (In this complaint, a sum of Rs.2,75,575.50, credit for which has been given on account of delay compensation, shall be deducted from the compensation amount arrived at by way of interest @12% for delay period).

      Further for failure of Opposite Parties to deliver possession within 30 days from the date of making payment/ submission of documents by the complainants, for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10^th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.

4. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony and physical harassment, caused to the complainants, and Rs.35,000/- as cost of litigation, to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.

Complaint Case No.564 of 2017.

43.         In this case, the Opposite Party is directed as under:-

1.       To hand over physical possession of  the unit, allotted in favour of the complainant, complete in all respects, including modular kitchen with cupboards above the slab also and provision for Split AC in all bedrooms, drawing & dining room, to the complainant, within a period of four months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against him.
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc. by the complainant.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount(s), to the complainant, from 18.07.2014 to 28.02.2018, [w.e.f. 18.07.2014 in respect of deposits made up-to 18.07.2014 and from respective dates of deposits in respect of amount(s) paid after 18.07.2014], within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainant w.e.f. 01.03.2018, onwards (per month), till possession is delivered, by the 10th  of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1,00,000/- on account of mental agony and physical harassment, caused to the complainant, and Rs.35,000/- as cost of litigation, to the complainant, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.

Complaint No.516 of 2017

44.         In this case, the Opposite Parties are, jointly and severally, held liable and directed as under:-

(i)   To refund the amount of Rs.49,95,566.27  to   the complainant, alongwith interest @13% p.a.(simple) with effect from 12.04.2013 for the amount(s) paid uptil 12.04.2013 and from the respective dates of deposits, in        respect of payments made w.e.f. 12.04.2013 onwards, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii) To pay an amount of Rs.1,50,000/- as compensation for mental agony, physical     harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/-,      as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order.

(iii) In case, the payment of amount, mentioned     in Clause (i), is not made, within the      stipulated period, then the Opposite Parties,       shall be liable to pay the amount mentioned in Clause (i) above, with interest @15%    (simple),  from the date of default, till   realization and amount(s) mentioned in Clause (ii) above, with interest @13% (simple) from the date of filing the complaint     till realization.

45.       In case, the complainant, has availed loan facility from a financial institution(s), it is made clear that the said Institution shall have the first charge on the amount payable, to the extent, the same is due against the complainant.

46.         Certified Copy of this order be placed in the file of connected complaints bearing Nos.516 & 564 both of 2017.

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

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

Pronounced.

02.02.2018.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(DEV RAJ)

MEMBER 

 

 

 

 

(PADMA PANDEY)

      MEMBER

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