STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Sukhjeet Singh, aged about 39 years, son of Sh.Pal Singh, resident of Shop No.20, Anaj Mandi, Rathia, Haryana-125051.
2. Dharup Singh, aged about 42 years,  son of Sh.Pal Singh, resident of Shop No.20, Anaj Mandi, Rathia, Haryana-125051.

……Complainants

V e r s u s

1. Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), having its Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, 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. The Director, Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company),  having its Corporate Office at SCO No.6-8, First and Second Floor, Sector 9-D, Chandigarh – 160009 (India).

….. Opposite Parties.

Argued by: Mr. Varun Bhardwaj,   Advocate for the complainants.

                    Mr. Ramnik Gupta, Advocate for  the  Opposite Parties.

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

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

                   MR. DEV RAJ, MEMBER.

                   MRS. PADMA PANDEY, MEMBER

PER  DEV RAJ, MEMBER

               The facts, in brief, are that the complainants who are brothers have applied for residential apartment in Group Housing Project of Opposite Party No.1  known as “IREO RISE” situated in Sector-99, SAS Nagar, Mohali for their personal use and for the use of their family members. The total cost of the apartment was Rs.51,05,720/-. Initially the complainants deposited a sum of Rs.4,18,955/- vide cheque No.451049  dated 20.6.2011 drawn on State Bank of Patiala, Chandigarh alongwith application for booking of an apartment. A copy of receipt issued by OPs is Ex C1. After receipt of the said amount of Rs.4,18,955/-, Opposite Parties sent provisional allotment letter to the complainants on 6.7.2011 wherein it was intimated that they have offered the Provisional Allotment of Residential Apartment chosen by the complainants having super tentative area of 1609 sq.ft bearing No.4, Ground Floor, Tower Juniper Court C in their aforesaid Project namely “IREO RISE”, a copy of which is Ex.C2. Thereafter the complainants deposited the payments as per details given below ;

Copies of receipts and statement of accounts are Ex.C5 to Ex.C9 respectively.

2.           It was further averred that on visiting the site, the complainants found that there was no development and even on enquiry, the OPs failed to give any satisfactory reply.  It was further averred  that the OPs have also got one more project in Mohali under the name & style of “IREO Hamlet” and even there was no development in that project and various aggrieved consumers have filed consumer complaints against the OPs wherein refund has been  allowed by the State Consumer Disputes Redressal Commission, Punjab. It was further averred that OPs have not developed the  site despite various assurances and rosy pictures given by them from time to time. The complainants also visited the spot in the last week of December,2016 and found that there was no development at the site, which was required to be done by OPs within 48 months from 17.8.2011 as mentioned in Clause Nos.13.3 to 13.5 under the heading of Possession and Holding Charges of Apartment Buyer’s Agreement dated 17.8.2011 (Ex.C.4). The OPs instead of giving any satisfactory reply  about development of site, demanded more and more money from the complainants, but after considering all the previous record of OPs of various other projects, the complainants requested OPs to refund the amount of Rs.39,77,477.54 deposited by them with up-to-date interest @ 18% p.a. from the respective dates of deposit.  It was alleged that the OPs intentionally and deliberately took money from the complainants as well as from various customers and malafidely got executed Apartment Buyer’s Agreement on 17.8.2011 by keeping them in dark  as at that time OPs were not having approvals from the competent authorities. However, the Agreement was signed by the complainants in good faith without having the knowledge with regard to failure of earlier projects of the OPs. It was further alleged that as per Apartment Buyer’s Agreement dated 17.8.2011, OPs were to deliver possession of the Apartment in July, 2015 but there was no progress and due to delay in delivering possession, the complainants have to pay an amount of Rs.3,50,000/- as rent. A copy of the rent agreement dated 25.7.2013 is Ex.C.10.  

3.           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 Opposite Parties to refund the amount of Rs.39,77,477.54 alongwith interest @ 18% from the respective dates of deposit of above amount till the date of realization ; Rs.5,00,000/- as compensation for mental agony and physical harassment, Rs.1,00,000/- towards litigation charges and Rs.3,50,000/- on account of rent paid by the complainant from 17.7.2015 till the filing of present complaint @ Rs.16000/- per month. 

4.            Opposite Parties in their  reply 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 17.08.2011; 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 Opposite Party No.1, as the parties did not enter into any contract for hiring the services; that the complainants booked the Apartment in question solely for the commercial purpose to earn profit, as they already owned and possessed residential house in Village Teliwara, Tehsil Ratia, District Fatehabad, Haryana ; that this Commission has no territorial jurisdiction on account of existence of Clause 36 in the Agreement and that the compensation claimed is beyond Section 14(1)(d) of the  1986 Act, as in the present claim, there is no allegation of negligence on the part of the Opposite Parties.   

5.           On merits, it was stated that  the total cost of the apartment  agreed to be paid by the complainants was Rs.54,56,354.18/- inclusive of BSP IFMS, EDC and applicable service tax.  It was further stated that the complainants have made the payments towards discharge of their contractual obligation to make the payment of the consideration price of the Apartment in question in advance. However, they made the  payment with delay  and thereafter failed to make the payment of due instalments as were payable within 3 months and 6 months on completion of 6^th floor slab which were demanded vide demand note dated 25.8.2014 and 25.11.2014, followed by reminders and  notice dated 7.2.2015 and then   last & final opportunity letter  dated 28.5.2015. Copies of demand notices, reminders, final notice and last & final opportunity letter are attached as Annexures OP-9 to OP-15. It was stated that the complainants have altogether failed to pinpoint as to what development and to what extent the development was lacking at site and secondly when the OPs after fully developing the site and constructing the apartments as per the approved building plans, sanctions and approvals had already  applied for the issuance of occupation certificate of the apartment in question on 22.11.2016, therefore, the question of non-development of the site in December,2016 does not arise and hence the allegations made to the contrary have been denied.  It was further stated that the complainants never enquired from the OPs with regard to development and possession of the apartment. However, the complainants did not make payment of some of the due installments till date and unilateral stoppage of payment of the due installments on their whims and fancies  is against the agreed terms and conditions of the Agreement.  Thus, the complainants were in utter breach of the Apartment Buyer’s Agreement. It was further stated that development and constructions carried out by the OPs at site were/are visible to the naked eye and as such the allegations regarding non-development at site do not hold any water and further that the complainants never demanded the refund of the paid-up amount at any time except in the present complaint, by exercising their rights under the terms and condition No.13.5 of the Agreement after terminating the Apartment Buyer’s Agreement.  It was further stated that the OPs were having necessary approvals from the competent authorities and that the complainants had inspected and seen the sanctions and approvals as per the declarations made by them in the Agreement.  It was further stated that as per the agreed terms and conditions of the Agreement, possession was to be offered by 17.1.2016 i.e. 48 months from the date of approval of the building plans and after completing the construction and developing the site, OPs had applied for the issuance of occupation certificate of the apartment in question on 22.11.2016 and the same is expected to be received very soon.

6.        It was further stated that demand of Rs.3,50,000/- on account of rent is not only against the settled terms and conditions of the Agreement but also is vague, incomplete, false, frivolous and untenable.  It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

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

8.           Opposite Parties, in support of their case, submitted the affidavit of Mr.Rajneesh, their Authorized Representative, by way of evidence, alongwith which, a number of documents were attached.

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

10.        The first question that falls for consideration is as to whether, the complainants are investors and did not fall within the definition of a consumer, under Section 2 (1) (d) (ii) of the Act, as alleged by opposite parties no.1 and 2. It may be stated here that there is nothing on the record, that the complainants are property dealers, 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. On the other hand, the complainants have specifically stated in para no.2 of the complaint that they have purchased the said unit, for their residential purpose. At the same time, in their rejoinder filed, the complainants have also clarified that they were not the owners of house, at Amritsar. Since, opposite parties no.1 and 2 have leveled allegations against the complainants, as such, the onus lays upon them, to prove it, which they failed to do so. Thus, in the absence of any cogent evidence, in support of the objections raised by the  opposite parties no.1 and 2, mere bald assertion i.e. simply saying that the complainants being investor, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only this, 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:-

“In the case of the purchase of the houses 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. 

              The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no.1 and 2, in their written reply, therefore, being devoid of merit, is 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. 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, Provisional Allotment Letter dated 06.07.2011 as also payment receipts (at pages 84 to 87), also reveal that the same were issued by opposite parties from their Chandigarh Office, as the same bore address of the Company as “SCO 6-7-8, Sector 9-D, Madhya Marg, Chandigarh”. Since, as per 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.  The objection taken by opposite parties  in their written version, 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 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.

              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 opposite parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

13.          The next  question, that falls for consideration, is, as to whether, 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. 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 Hon’ble National Commission on 13.07.2017 in case titled ‘Aftab Singh Vs. Emaar MGF Land Ltd. & Anr.’, in Consumer Complaint No.701 of 2015, with IA/247/2016, IA/505/2017, IA/7294/2015, IA/9570/2015 & IA/11813/2016.

             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.

14.         Another objection raised by Counsel for opposite parties  was that since the issues raised in the present complaint relate to the interpretation and scope of the specific clauses of the said Agreement and being contractual in nature, as such, only the Civil Court has power to adjudicate the same, and this Commission did not have the jurisdiction to adjudicate the present complaint.  At the time of arguments also, it was also contended by Counsel for opposite parties that the complainants are seeking directions from this Commission to re-write the agreed terms and conditions of the Agreement. As stated above, the complainants hired the services of opposite parties  for purchasing the unit, in question, in the manner, referred to above. Opposite parties  were to deliver possession of the unit, in question, in a time bound manner, referred to above, with complete basic amenities. By not completing the development and construction within the stipulated period, opposite parties violated the terms and conditions of the Agreement and were deficient in rendering service. 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”.

15.           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`s case (supra). 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 a 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 raised by opposite parties in this regard, being devoid of merit, must fail, and the same stands rejected.

16.       The core question which falls for consideration is as to whether there was delay in delivering possession and whether the complainants are entitled to refund of the amount deposited. The Apartment Buyer’s Agreement was executed between the complainants and Opposite Parties on 17.8.2011. The possession of the Unit in question was to be delivered within a period of 30 months from the date of execution of the Agreement or from the date of approval of building plans. The building plans, as stated by the OPs in their written statement,  were approved on 18.1.2012. The payment against the unit was payment-linked plan.  Against the total sale consideration of Rs.5456354/-, the complainants have paid Rs.39,77,477/-. The last payment by the complainants was made on 17.12.2014.  As per Account Statement (OP-6), as on 22.12.2014 a sum of Rs.11,75,320.64 was due against the complainants and there was delayed interest in the sum of Rs.5,16,925.03. As per the aforesaid statement, a total sum of Rs.16,92,245.68 was due against the complainants.  The OPs have been issuing demand notices for payment which fell due w.e.f. 25.8.2014 onwards.  Copies of demand notices/reminders, so sent, are at Annexures OP-9 to OP-13.  The OPs even sent a final notice on 7.2.2015 asking the complainants to make payment due on or before 21 days from the date of issuance of letter  i.e. by 28.2.2015.  The complainants were told that if the outstanding amount was not remitted, the allotment, in terms of the relevant clauses of Apartment Buyer’s Agreement,  shall be cancelled.  There has been, thus, consistent default on the part of the complainants to make payment of the installments.

17.        No doubt, the complainants defaulted in making payment of instalments but it is also a fact  that they had made payment of all the installments up till August,2014 when 30(24+6) months’ period for delivering the possession came to an end.  Even the extended delay period was over on 17.7.2015. The fact remains that the OPs did not cancel the allotment and even possession of the Unit has still not been offered.  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 opposite parties. 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 complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants 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 along with reasonable compensation, in the form of interest.”

 18.        Not only this, in a 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, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, 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”.

              In view of the above, it is held that there was material violation on the part of the Opposite Parties in not offering possession of the Unit by the stipulated date.  The complainants are, therefore, entitled to seek refund of the amount actually deposited alongwith interest and compensation.

19.       It is to be further seen, as to what rate of interest, on the amount   refunded   can   be granted, in favour of the complainants. It is not in dispute that an amount of Rs.39,77,477.54P was paid by the complainants, without getting anything, in lieu thereof.  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 complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest @12% simple (less than the rate of interest charged by opposite parties).

20.                In view of aforesaid position, opposite parties  are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.  In the facts and circumstances of the case, compensation in the sum of Rs.1.00 lacs, if granted, would serve the ends of justice.

21.         The complainants have also claimed house rent in the sum of Rs.3,50,000/- allegedly paid by them with effect from July, 2015 onwards. Copy of rent agreement (Ex.C.10) was executed on 25^th day of July,2013 for the period 01.08.2013 to 30.06.2014. The rent agreement/affidavit does not contain the addresses of witnesses and is not even attested. The claim for rent with effect from July,2015, on the basis of rent agreement  for 1.8.2013 to 30.6.2014 is not tenable.  Even otherwise when the complainants have been granted interest on the deposited amount from the date of respective deposits, there is no justification for allowing the same(rent).

22.        For the reasons recorded above, the complaint is partly accepted, with costs. Opposite parties  are directed as under:-

1. To refund the amount of Rs.39,77,477.54p. received from the complainants, in the manner explained above, to them (complainants), alongwith interest @12% simple,  from the respective dates of deposits onwards.
2. To pay an amount of Rs.1.00 lacs, to the complainants, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices.
3. To pay cost of litigation, to the tune of Rs.35,000/- to the complainants.
4.  The amounts awarded in sr.nos(i) to (iii) shall be paid by opposite parties  to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at Clause (i), shall carry penal interest @15% simple  instead of 12%, from the date of default and amounts mentioned in Clauses (ii) and (iii), shall carry interest @12% simple  from the date of filing the complaint till realization.

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.

01.08.2017