Chandigarh

StateCommission

CC/30/2018

Karun Gupta - Complainant(s)

Versus

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

G D Gupta, Adv.

25 Sep 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	30 of 2018
Date of Institution	:	17.01.2018
Date of Decision	:	25.09.2018

 

1. Karun Gupta, age about 39 years son of Sh. Ghanshyam Dass Gupta, Mobile No.9216445507.
2. Mansi Gupta, age about 38 years wife of Sh. Karun Gupta,

Both presently residents of Kothi No.52, Sector 2, Chandigarh.

 

 ……Complainants.

V e r s u s

1. PUMA Realtors Pvt. Ltd., No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi – 110074 through its Managing Director.
2. PUMA Realtors Pvt. Ltd., SCO No.6-8, First & Second Floors, Sector-9D, Chandigarh through its Branch Head/Branch Manager.

2^nd Address:- M/s PUMA Realtors Pvt. Ltd.  through Customer Care Incharge, Ireo Rise, Sector 99, Mohali.

3. Anupam Nagalia, Director of M/s PUMA Realtors Pvt. Ltd. R/o PV-66, The Palm Springs, Gold Course Road, Sector 54, Gurgaon – 122002.
4. Sh. Amrick Singh Gambhir, Director of M/s PUMA Realtors Pvt. Ltd., R/o A-124, 2^nd Floor, Fateh Nagar, New Delhi – 110018.

….Opposite Parties.

Argued by: Sh. Deepak Aggarwal, Advocate Proxy for Sh. G. D. Gupta, Advocate for the complainants.

                 Sh.Rohit Tanwar, AGM (Legal) of  the opposite parties.

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Complaint case No.	:	860 of 2017
Date of Institution	:	22.12.2017
Date of Decision	:	25.09.2018

 

1. Baldev Singh s/o S. Lal Singh,
2. Tarlochan Kaur w/o S. Baldev Singh,
3. Kamaljit Singh s/o S. Baldev Singh,
4. Amandeep Kaur w/o S. Kamaljit Singh s/o S. Baldev Singh,

Complainants No.1 to 4 are residents of Rattan Niwas, Gandhi Chowk, Mussoorie, Uttarakhand.

……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 Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh – 160009 (India) through its Managing Director.
2. Housing Development Finance Corporation Limited (H.D.F.C. Bank), Dehradun through its Branch Manager.

….Opposite Parties.

 

Argued by: Ms. Nitika Jora, Advocate proxy for Sh. Sandeep Khunger, Advocate for the complainant.

                 Sh. Rohit Tanwar, AGM (Legal) of Opposite Party  No.1.

                 Mrs. Rupali Shekhar Verma, Advocate for Opposite Party No.2.

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Complaint case No.	:	108 of 2018
Date of Institution	:	08.03.2018
Date of Decision	:	25.09.2018

 

1. Ajay Kumar Soni S/o Sh. Shiv Dass Soni, R/o H.No.978, First Floor, Phase 3B2, Mohali, Punjab.
2. Kusum Soni W/o Ajay Kumar Soni R/o H.No.978, First Floor, Phase 3B2, Mohali, Punjab.

……Complainants

V e r s u s

1. M/s Puma Realtors Private Limited, SCO No.6-8, First and Second Floors, Sector -9D, Chandigarh through its Managing Director/Authorized Signatory.
2. Sh. Anupam Nagalia, Director of M/s Puma Realtors Private Limited, R/o PV-66, The Palm Springs, Golf Course Road, Sector 54, Gurgaon – 122002.
3. Sh. Amrick Singh Gambhir, Director of M/s. Puma Realtors Private Limited R/o A-124, 2^nd Floor, Fateh Nagar, New Delhi – 110 018.
4. ICICI Bank Limited, having its office at SCO 129-130, Sector 9-C, Chandigarh through its Managing Director/Director.

 

Argued by: Sh. Savinder Singh Gill, Advocate for the complainants.

                 Sh. Rohit Tanwar, AGM (Legal) of Opposite Parties No.1      to 3.

                 Opposite Party No.4 need not to be served as per order dated 16.04.2018.

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Complaint case No.	:	117 of 2018
Date of Institution	:	14.03.2018
Date of Decision	:	25.09.2018

 

1. Mr. Sanjeev Kumar Garg, son of Sh. Bhan Chand, aged 46 years.

Correspondence Address:- House No.642, Phase-2, S.A.S. Nagar, Mohali, Punjab.

2. Mr. Anurag Aggarwal son of Sh. Parmod Kumar Aggarwal, aged 49 years, Correspondence Address:- House No.3162, Sector 21-D, Chandigarh.

……Complainants

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, First and Second Floors, Satbari, New Delhi – 110074, through its Chairman/Managing Director/Director/Authorized Signatory.

2^nd Address:-

Corporate and Sales Office presently at M/s Puma Realtors Private Limited), IREO Project Office: IREO Rise, Sector 99, SAS Nagar (Mohali), Punjab – 140306, through its Managing Director/Director/Authorised Signatory.

2. Sh. Anupam Nagalia, Director of M/s Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1965 (An IREO Group Company), IREO Project Office, IREO Rise, Sector 99, SAS Nagar (Mohali), Punjab – 140306.
3. Sh. Amrick Singh Gambhir of Director, M/s Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1965 (An IREO Group Company), Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi – 110074.

 

Argued by: Sh. Deepak Aggarwal, Advocate for the complainants.

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

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Complaint case No.	:	121 of 2018
Date of Institution	:	26.03.2018
Date of Decision	:	25.09.2018

 

1. Mr. Rishi Gumber s/o Sh. Sharwan Kumar resident of H.No.5741 (Ground Floor), Sector 38-West, Chandigarh, presently residing at 7/1, Gore Street, Glenelg North Adelaide, Australia, Post Code: 5045.
2. Rajni Gumber w/o Rishi Gumber resident of H.No.5741 (Ground Floor), Sector 38-West, Chandigarh through her General Power of Attorney Holder Rishi Gumber s/o Sh. Sharwan Kumar, resident of H.No.5741 (Ground Floor, Sector 38-West, Chandigarh, residing at 7/1, Gore Street, Glenelg North Adelaide, Australia, Post Code: 5045.

……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, First and Second Floors, Satbari, New Delhi – 110074 and Project Office IREO Rise, Sector -99, Mohali through its Managing Director.
2. Jai Bharat, Director, Puma Realtors Pvt. Ltd., A Company incorporated under the Companies Act, 1956 (An IREO Group Company), Project Office IREO Rise, Sector -99, Mohali through its Managing Director.
3. Anupam Nagalia, Director, Puma Realtors Pvt. Ltd., A Company incorporated under the Companies Act, 1956 (An IREO Group Company), Project Office IREO Rise, Sector -99, Mohali through its Managing Director.
4. Amrick Singh Gambhir, Director, Puma Realtors Pvt. Ltd., A Company incorporated under the Companies Act, 1956 (An IREO Group Company), Project Office IREO Rise, Sector -99, Mohali through its Managing Director.

……Opposite Parties.

 

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

                 Sh. Rohit Tanwar, AGM (Legal) of the opposite parties.

                  

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Complaint case No.	:	130 of 2018
Date of Institution	:	02.04.2018
Date of Decision	:	25.09.2018

 

1. Mr. Khushwant Singh s/o Nirmal Singh resident of J-1809, Second Floor, C.R. Park, New Delhi – 110019.
2. Sarabjeet Kaur w/o Khushwant Singh resident of J-1809, Second Floor, C.R. Park, New Delhi – 110019, both presently residing at H.No.1107, Sector-70, Mohali through her General Power of Attorney Holder, Jagjit Singh s/o Sh. Iqbal Singh, r/o J-1809, Second Floor, C.R. Park, New Delhi – 110019.

……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, First and Second Floors, Satbari, New Delhi – 110074 and Project Office IREO Rise, Sector -99, Mohali through its Managing Director.
2. Jai Bharat, Director, Puma Realtors Pvt. Ltd., A Company incorporated under the Companies Act, 1956 (An IREO Group Company), Project Office IREO Rise, Sector -99, Mohali through its Managing Director.
3. Anupam Nagalia, Director, Puma Realtors Pvt. Ltd., A Company incorporated under the Companies Act, 1956 (An IREO Group Company), Project Office IREO Rise, Sector -99, Mohali through its Managing Director.
4. Amrick Singh Gambhir, Director, Puma Realtors Pvt. Ltd., A Company incorporated under the Companies Act, 1956 (An IREO Group Company), Project Office IREO Rise, Sector -99, Mohali through its Managing Director.

……Opposite Parties.

 

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

                 Sh. Rohit Tanwar, AGM (Legal) of the opposite parties.

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

 

 

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

                MRS. PADMA PANDEY, MEMBER

 

PER PADMA PANDEY, MEMBER

                By this order, we propose to dispose of the aforesaid six consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In four complaint cases bearing Nos.30, 117, 121 & 130 all of 2018, the complainant(s) have sought possession of the unit(s)/flat(s), in question, alongwith delayed compensation etc. whereas in two complaint cases bearing No.860 of 2017 & 108 of 2018, the complainant(s) have sought refund of the deposited amounts alongwith interest, compensation and litigation costs etc.

2.             At the time of arguments, on 12.09.2018, it was agreed between the contesting parties, that, in view of above, all these complaints can be disposed of, by passing a consolidated order.

3.             To dictate order, facts are being taken from consumer complaint bearing No.30 of 2018 titled as ‘Karun Gupta & Anr. Vs. Puma Realtors Pvt. Ltd. & Ors.’.

4.             The facts, in brief, are that the opposite parties provisionally allotted apartment No.CCC-06-002 having super area of 1609 sq. ft., to the complainants, on 6^th Floor in Cassia Court C Tower, 3B2TS, in their project ‘ IREO RISE’ in Sector 99, SAS Nagar, Mohali, Punjab, for total sale consideration of Rs.51,86,170 vide letter dated 23.09.2011. Apartment Buyers Agreement was executed between the parties on 04.01.2012. As per Clause 13.3 of the Agreement, the opposite parties failed to deliver possession of the unit, in question, within 30 months from the date of the said agreement and also the grace period of 180 days lapsed. It was further stated that till the filing of the complaint, promised facilities lie swimming pool, club house etc., were not ready. It was further stated that the complainants paid about 95% payment against the total consideration. It was further stated that the opposite parties are also liable to pay interest to the complainants for delayed period of delivery of possession in terms of Clause 7.3 of the agreement. It was further stated that the opposite parties are also entitled to pay interest for the delayed period. The complainants served a legal notice upon the opposite parties requesting them to deliver physical possession of the flat, in question, without any further delay and make payment of interest for the delayed period.

5.             It was further stated that the aforesaid acts and conduct of the opposite parties, amounted to deficiency in providing service and adoption of unfair trade practice. Hence this complaint seeking directions to the opposite parties to deliver possession of the flat, in question, with all committed amenities/facilities; pay 20% interest on the deposited amount from the date of expiry of 30 months since the date of execution of agreement i.e. 04.01.2012; pay Rs.10 Lakhs as compensation for causing undue mental agony, unnecessary harassment and other detriments and Rs.50,000/- towards litigation costs.

6.             Upon notice, reply was filed by the opposite parties, wherein, they took 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; that since the present complaint relates 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 the allegations levelled in the complaint are of contractual nature and, as such, triable by Civil Court only; that this Commission has no territorial jurisdiction on account of existence of Clause 36 in the Agreement, according to which, only the Courts at Mohali and the Punjab & Haryana High Court at Chandigarh, has the exclusive jurisdiction, in the matters/disputes, arising out in respect of the unit, in question; that the complainants are not consumers and are merely investors as they invested their money only for appreciation of value and that the relief claimed is beyond Section 14(1)(d) of the 1986 Act.

7.             On merits, it was stated that the physical possession of the flat, in question, already delivered to the complainants vide letter dated 05.01.2018 in terms of the agreement but they did not come forward for taking the possession. It was further stated that the complainants are guilty of concealing the factum of offer of possession from this Commission. It was further stated that the complainants filed this false and frivolous complaint out of sheer greed by borrowing the allegations from other complaints. It was further stated that about 50 families have started residing in the apartments of this project. It was further stated that the complainants are trying to mislead this Commission by misconstruing the terms and conditions of the agreement. It was further stated that the allegation of the complainants that the opposite parties failed to deliver the possession hold no water. It was further stated that the complainants cannot be allowed to demand so heavy rate of interest i.e. 20% per annum with quarterly rest as they invested their money for the purchase of immovable property and not in any money growing scheme. It was further stated that the opposite parties in compliance to the legal notice, offered the physical possession of the flat, in question and delayed compensation of Rs.4,35,636/- has already been paid to the complainants. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

8.     The parties concerned, led evidence in support of their cases.

9.     We have heard the contesting parties, and have gone through the evidence, and record of all the cases, carefully. 

10.   First, we will deal with the objection, raised by the opposite parties, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, in the Agreement, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), 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), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

11.           In view of the above, objection raised by the opposite parties in this regard, being devoid of merit is rejected.

12.           Another objection raised by the opposite parties was that since the complainants did not buy goods and did not hire any services and are seeking enforcement of the Agreement in respect of immovable property i.e. a flat, which transaction is contractual, in nature, 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 flat, in question, in the manner, referred to above, on payment of sale consideration. Furthermore, the plea taken by the opposite parties that there is a contract to sell a flat only, to the complainants and no services were to be provided, is falsified from their own document i.e. agreement dated 17.10.2011, wherein it has been very clearly mentioned that the opposite parties shall carry out the internal development of the project, which inter     alia, includes connecting the electric, water, sewer sanitary and drainage fittings on any additional structure/storeyes with the exiting electric, water,  sanitary and drainage fittings of the project. According to Clauses 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). Counsel for the Opposite Parties, in this regard, referred to Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711. The Hon’ble Supreme Court in Narne Construction P. Ltd. etc. etc. Vs. Union of India and ors. Etc.’s case (supra) and Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors.’s case (supra), had clearly held that the nature of transaction is covered by the expression ‘service’. In Bangalore Development Authority Vs. Syndicate Bank’s case (supra), it was the specific case of the Opposite Parties that the scheme was on ‘no profit no loss basis’, there was escalation in the price of houses by ten times and the delay had occurred on account of contractor’s fault. By no stretch of imagination, the allotment in the present case, can be said to be on ‘no profit no loss basis’. As such, Bangalore Development Authority Vs. Syndicate Bank’s case (supra), being distinguishable on facts, is of no help to the opposite party. Not only this, as stated above, 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 1986 Act, can be availed of by them, as they fall within the definition of a 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.

13.   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. Furthermore, perusal of Apartment Buyers Agreement shows that the same was executed at Chandigarh. Further receipt (Annexure C-2) and provisional allotment letter (Annexure C-3) were issued by the opposite parties from their Chandigarh Office, as the same bore address of the Company as “SCO 6-7-8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh”. Not only as above, as per Clause 29 of the Agreement, address of the Company for communication and notices is also found mentioned as “SCO 6-8, First and Second Floors, Sector 9-D, Chandigarh-160009 (India)”.  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 the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

14.           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. 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.

15.           Another objection was taken by the opposite parties, to the effect that the complainants are not consumers and are merely investors as they invested their money only for appreciation of value. It may be stated here that there is nothing, on record to show that the complainants are property dealers and deal in sale and purchase of property, in India, on regular basis. The complainants in their complaint, supported by affidavit(s), in the opening paragraph, have specifically stated that they booked the flat, in question, with a desire for booking a residential apartment. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as 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.   It may also be stated here that a person may buy two or three houses/plots, if the requirement of his family cannot be met in one house/plot. 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. Even otherwise, still the complainants are seeking possession of the flat, in question. The objection raised, being devoid of any substance, stands rejected.

16.           The Opposite Parties, while filing their written statement, contended that Opposite Parties No.3 & 4 are not personally liable for the reliefs claimed in as much as neither they have executed the Buyers Agreement nor have received any money from the complainants nor have undertaken any obligation to give possession of the apartment to the complainants. It was stated that merely, because Opposite Parties No.3 & 4 are Directors of Opposite Parties No.1 & 2, that is not sufficient to fasten any liability upon Opposite Parties No.3 & 4 and as such, their names are liable to struck off from the array of the parties being unnecessary parties. It may be stated here that a Company acts through its Director(s). The fact of Opposite Parties No.3 & 4, being Directors of the Company, has neither been disputed nor has it been pleaded that they are not the active Directors of the Company. Rather, it has been admitted that they are Directors of the Company. In view of settled law and ratio of judgments in Sanjay K. Malviya Vs Sidhharth Enterprises & Anr. I (2008)CPJ 74(NC),  Mr. Tonse N.M. Pai Vs. All Goa Manipal Finance Group of Companies Creditors Association, 2013 (1) CCC 420 (NS), Byford Leading Ltd. Vs. Union of India (57) (1995) DLT 623, Ravikant and another Vs. National Consumer Disputes Redressal Commission and others (1997 (2) CPR 65); The Aligarh Municipal Board vs Ekka Tonga Mazdoor Union and Ors (AIR 1970 SC 1767), Ashish Ramesh Chandra Birla & Ors.Vs Murlidhar Rajdhar Patil & Ors. I (2009) CPJ 200 (NC), and M/s India Bulls Real Estate & Wholesales Services Ltd. & Ors. Vs. Vemparalasrikant & Anr., First Appeal No.797 of 2017 decided by Hon'ble National Consumer Disputes Redressal Commission, New Delhi on 16.08.2017, it emerges that the Managing Director and/or Directors are responsible and can be penalized under Section 27 of Consumer Protection Act, 1986. In view of this, for failure of Opposite Parties No.1 & 2, they (Opposite Parties No.3 & 4) are also equally responsible. The objection raised, thus, being not sustainable, stands rejected.

17.           Similar objections have also been taken in connected complaints, which, in view of above, are decided in favour of the complainants and against the opposite parties.

18.           It is not in dispute that the complainants had paid an amount of Rs.50,74,141/- against total sale consideration of Rs.53,84,982.01 ps., as is evident from statement of account at page 43 of the file.

19.           The question that now 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). In the instant case, there is nothing on record to show as to when building plans were approved but in the connected complaint case bearing No.121 of 2018, letter of approval of building plan has been placed on record as Annexure OP-12, as per which, the building plans were approved on 18.01.2012 i.e. after execution of Buyer’s Agreement on 17.10.2011. 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. In the instant case, the Opposite Parties did not place on record any document to show as to when they applied for Occupation Certificate with the authorities concerned. No cogent evidence or justification for seeking advantage of 180 days grace period has been placed on record by the Opposite Party. However, the opposite parties received partial completion certificate on 30.06.2017 (Annexure OP-3). It is an admitted fact that possession of the unit, in question, had not been offered to the complainants, either after expiry of 180 days or after expiry of extended delay period of 12 months. Possession letter placed on record is dated 05.01.2018 and the present complaint was filed on 17.01.2018. The opposite parties, in their complaint, raised an allegation that the complainants with ulterior motive did not disclose the factum of receipt of offer of possession letter dated 05.01.2018 in their complaint, which was filed subsequently on 17.01.2018. Be that as it may, the fact is that possession of the flat, in question, was offered to the complainants on 05.01.2018. No doubt, the Opposite Parties were duty bound to hand over possession within 30 months i.e. by 17.07.2014. Clearly, there is delay of more than four years in offering possession. 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, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainants are certainly entitled to physical possession of the unit, in question.

20.           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.

21.      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 the Opposite Parties 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.

22.           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 delivery of possession of the unit would meet the ends of justice.

23.           In the offer of possession letter dated 05.01.2018, the complainants were given 30 days’ time to make payment and for completion/submission of documents and upon the complainants doing so, the opposite parties were to take another 30 days for final touches/finishing works in the apartment. The delay in delivering possession would come up-to (05.01.2018 + 30 days + 30 days) 06.03.2018.

24.       However, since the opposite parties, while offering possession, gave credit of Rs.4,35,636.75 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.

25.           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, by not delivering physical possession of the unit to them, by the Opposite Parties, by the promised date in the Agreement i.e. by 17.07.2014. The complainants purchased the unit, with the hope to have a roof over their head alongwith family members but their hopes were dashed to the ground. The complainants have, thus, undergone a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Delay of more than four years in delivering possession is a clear act of deficiency on the part of the Opposite Parties and loss to the complainants. In our opinion, compensation, on account of mental agony and physical harassment, caused to the complainants, if granted, to the tune of Rs.1,50,000/- shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

26.       In so far as other pleas/objections raised in some of connected complaint(s) qua, construction of flats over the existing tower(s) by the Opposite Parties and provision of Split AC fittings and complete modular kitchen in the unit(s), in question, it may be stated here that this Commission has already decided the above issues. In this case also, the same view is taken by holding that in view of relevant clauses 22.3 and 10.10 of Apartment Buyer’s Agreement, we are inclined to agree with the Opposite Parites (Puma Realtors Pvt. Ltd.) that construction of additional flats is in accordance with the specific provision in the Apartment Buyer’s Agreement and the objection of the complainant(s) is, therefore, not tenable. Further, as per Annexure I, (at Pages 117 – 118 of the file), the Opposite Parties were to make provision for Split AC and modular kitchen. 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. The Opposite Parties have also failed to clarify, why the provision of Split AC was not made. Thus, the Opposite Parties are liable to provide modular kitchen with cup-boards upper the slab also and so also the provision for split AC fittings in the bedrooms and drawing & dining room.

27.           In connected Complaint Cases bearing Nos.117, 121 & 130 of 2018, wherein the complainant(s) have sought possession of the unit(s), in question, alongwith delayed compensation etc., the opposite parties, on receipt of Partial Completion Certificate(s) on 30.06.2017 (Annexure OP-3), offered possession of the unit(s), in question, to the complainant(s) on the very said date i.e. on 30.06.2017 (Annexure OP-4) itself. In the offer of possession letter(s) dated 30.06.2017, 45 days’ time to make payment & for completion/submission of documents + another 30 days for final touches/finishing works in the apartment has been given. Therefore, in these cases, the delay in delivering possession would come up-to (30.06.2017 + 45 days + 30 days) 12.09.2017. Therefore, in each of these cases, award of interest @12% p.a. on the deposited amount(s) for the period of delay i.e. w.e.f. 18.07.2014 till 12.09.2017, would meet the ends of justice.

28.           However, since the opposite parties, while offering possession, gave credit of Rs.3,49,107.00 (in CC/117/2018), Rs.3,52,012.50 (in CC/121/2018) & Rs.4,05,205.50 (in CC/130/2018) on account of delayed compensation, these amounts shall be reduced from the compensation amounts arrived at by granting 12% interest on the deposited amount(s) for the delay period.

29.           The complainants, in each of these complaints, are, also held entitled to compensation, in the sum of Rs.1,50,000/-.

30.           In Compliant Case bearing No.117 of 2018, the complainants also prayed for provision of green area with the apartment as committed by the opposite parties at the time of booking of the unit, in question. The complainants have themselves placed on record a letter dated 07.01.2015 (Annexure C-15), whereby, the opposite parties expressed their inability to provide the ‘private greens’ area with the apartment, in question, on account of design and compliance issues. However, they gave an option to the complainants either to choose an alternative apartment or to take refund of Rs.1,56,200/- towards the charges attributable to private greens @Rs.100/- per sq. ft., which were to be adjusted in the final installment payable for the said apartment. There is nothing on record to show that the complainants ever raked up this issue with the opposite parties during the period 07.01.2015 till offer of possession of the unit, in question, on 30.06.2017. It was for the complainants to choose either of two options given i.e. for alternative unit or refund, but he kept silent and by not going for alternative unit, an adverse inference is drawn against the complainants that they were interested in refund of Rs.1,56,200/- to be adjusted in the final installment payable for the apartment in question. Therefore, this issue is decided in favour of the opposite parties and against the complainants.

31.           In Complaint cases bearing No.860 of 2017 and 108 of 2018, the complainants have sought refund of the deposited amount of Rs.53,22,784.00 and Rs.62,40,061.00 respectively alongwith interest @15% p.a & @13% p.a. from the respective dates of deposits alongwith compensation & litigation costs etc.

32.           The core question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainants and whether the complainants are entitled to seek refund of the amounts deposited by them alongwith interest. The complainants in both the complaints are original allottees. Apartment Buyer’s Agreement were executed on 20.10.2011 and 31.12.2014 respectively. As per Clause 13.3 of the Apartment Buyer’s Agreement(s), 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.

33.           In Complaint Case bearing No.860 of 2017, 30 months period for delivering possession from 18.01.2012 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 complainants 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, has not been offered to the complainants till date.

34.           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 or till 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 or till date, the complainants are entitled to refund of the amount deposited, alongwith interest and compensation by way of filing the instant complaint.

35.           It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.53,20,687.00 was paid by the complainants, 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 complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest @13% p.a. (simple) (less than the rate of interest charged by the Opposite Parties), from the dates of respective deposits.

36.           In view of above discussion, the complainant(s) in Complaint Case bearing No.108 of 2018, are also held entitled to refund but there is a slight variation in this case. The total sale consideration of the unit, in question, as is apparent from Statement of Account (Annexure OP-8) was Rs.66,69,519.16 and the complainants paid an amount of Rs.62,40,061.00. Apartment Buyer’s Agreement was executed on 31.12.2014 and, thus, the possession of the unit, in question, was to be handed over by opposite parties No.1 to 3 by 30.06.2017 or at maximum before 180 days grace period or at best, before expiry of extended delay period of 12 months i.e. upto December 2018. Admittedly, the possession has not been offered to the complainants till date.  Without waiting for offer of possession, which is due uptil December 2018, the complainants filed the instant complaint in the month of February 2018 and thus, backed out from the Agreement, which is taken as rescinding of contract by them and, therefore, we allow refund of the deposited amount to the complainants, by forfeiting 10% of the sale consideration of the flat, in question. Accordingly, the complainants are held entitled for refund of the deposited amount minus 10% of the sale consideration of the flat, in question, alongwith interest @13% per annum from the date of respective deposits made till the date of actual realization. Undisputedly, as per Payment Plan (Annexure-IV), at Page 56 of the compliant, the total cost of the unit, in question, was fixed at Rs.64,71,204.91 and the complainants, as per their own admission, in all, paid an amount of Rs.62,40,061.00 to Opposite Parties No.1 to 3. 10% of the total sale consideration of the flat, in question, viz. Rs.64,71,204.91, shall come to Rs.6,47,120.00. The complainants are, thus, held entitled to refund of Rs.55,92,941.00 i.e. (Rs.62,40,061.00 minus (-)Rs.6,47,120.00), alongwith interest @13% p.a. from the respective dates of deposits till actual realization.

37.           In our opinion, in each of these complaints, compensation, for mental agony and physical harassment, in the sum of Rs.1,50,000/-, if granted, to the complainants, would be adequate to meet the ends of justice.

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

39.            For the reasons, recorded above, all the complaints bearing Nos.860 of 2018 and 30, 108, 117, 121 & 130 all of 2018, are partly accepted with costs.

 

 

Complaint No.30 of 2018.

40.         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, if any, and submission of required documents.
2.         To execute and get registered the sale deed(s), 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, to the complainants, from 18.07.2014 to 06.03.2018, 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.4,35,636.75, credit for which has been given on account of delayed compensation, shall be deducted from the compensation amount arrived at by way of interest @12% for delay period).

        Further for failure of the 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 10th 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 Cases No.117, 121 & 130 of 2018.

41.         In each of these cases, the Opposite Parties are, jointly and severally, directed as under:-

1.         To hand over physical possession of  the unit(s), allotted in favour of the complainant(s), 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(s), within a period of 30 days, from the date  of receipt of a certified copy of this order(s), on payment of the amount, legally due against the complainant(s), if any, and submission of required documents.
2.         To execute and get registered the sale deed(s), in respect of the unit(s), 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(s).
3. To pay compensation, by way of interest @12% p.a., on the deposited amount(s), to the complainant(s), from 18.07.2014 to 12.09.2017, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount(s) shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.

        (Amounts of Rs.3,49,107.00 (in CC/117/2018), Rs.3,52,012.50 (in CC/121/2018) & Rs.4,05,205.50 (in CC/130/2018), credit for which have been given on account of delayed compensation, shall be deducted from the compensation amount(s) arrived at by way of interest @12% for delay period).

        Further for failure of the Opposite Parties to deliver possession within 30 days from the date of making payment/ submission of documents by the complainant(s), for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount(s) for each month, till possession is delivered, shall be payable by 10th 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/-, in each case, on account of mental agony and physical harassment, caused to the complainant(s) and Rs.35,000/-, in each case, as cost of litigation to the complainant(s), 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(s) till realization.

Complaints Cases No.860 of 2017 & 108 of 2018.

42.         Opposite Party No.1 (in CC/860/2017) and Opposite Parties No.1 to 3 jointly and severally (in CC/108/2018) are held liable and directed as under:-

1. To refund the amounts of Rs.53,20,687/- (in CC/860/2017) & Rs.55,92,941/- (in CC/108/2018) to   the   complainant(s), alongwith interest @13% (simple), from the respective dates of deposits, within a period of 45 days, from the date of receipt of a certified copy of this order.
2. To pay an amount of Rs.1,50,000/-, in each case, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/-, in each case, as cost of litigation, to the complainant(s), within a period of 45 days from the date of receipt of a certified copy of the order.
3. In case, the payment of amount(s), mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties aforesaid, 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(s) till realization.

43.           However, Complaint bearing No.860 of 2017 stands dismissed against Opposite Party No.2 (HDFC Ltd.) and Complaint bearing No.108 of 2018 stands dismissed against Opposite Party No.4 (ICICI Bank Ltd.), with no order as to cost.

44.           In the cases, where the complainant(s) have availed loan facility from the financial institution(s), it is made clear that the said institution(s) shall have the first charge on the amount(s) payable, to the extent, the same is due against the complainant(s). However, it is further made clear that in cases where the complainant(s) had obtained loan for making part payment towards the price of the unit(s), in question, wherein the Opposite parties have incurred liability of interest (under Subvention Scheme) on the disbursed loan amount in terms of Tripartite Agreement, the complainant(s) shall not be entitled to interest as awarded in Clause (i) above, on the disbursed loan amount, for the said period.

45.           Certified Copy of this order be placed in the files of connected complaints bearing Nos.860 of 2017 and 108, 117, 121 & 130 all of 2018.

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

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

Pronounced.

25.09.2018.                                      

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

 

 (PADMA PANDEY)

      MEMBER

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