STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Complaint No.24 of 2009)

                                                                   Date of Institution: 14.07.2009

                                                                   Date of Decision  : 25.01.2011

1.      Sh. Narinder Kumar Dhawan son of Sh. Jagannath Dhawan C/o Cobindgarh Coal Agency, Amloh Road, Mandi Gobindgarh.

2.      Mrs. Sunder Mukhi wife of Late Sh. Bachan Lal, Kothi No.395, Phase II, Mohali.

3.      Sh. Rajesh Gupta son of Sh. C. V. Gupta, Kothi No.1432, Ist Floor, Sector 40B, Chandigarh.

…Complainants.

Versus

1.                 The Shalimar Estates (P) Ltd., Corp. Office: SCO No.110-111, Sector 8, Chandigarh.

2.                 The Managing Director, The Shalimar Estates (P) Ltd., Corp. Office: SCO No.110-111, Sector 8/C, Chandigarh.

3.                 Directors, The Shalimar Estates (P) Ltd., Corp. Office: SCO No.110-111, Sector 8/C, Chandigarh.

              ...Opposite Parties.

BEFORE:          MRS. NEENA SANDHU, PRESIDING MEMBER

                    S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. Saurab Bajaj, Advocate proxy for

                    Sh. Hemant Saini, Advocate for the complainants.

                    Sh. Arun Kumar, Advocate for the OPs.

PER  JAGROOP  SINGH  MAHAL,  MEMBER.

1.                 Briefly stated the case of the complainants is that they had applied for commercial showroom to the OPs in response to their advertisement. All the formalities were completed and a total payment of Rs.42,80,000/- was made to the OPs in the manner as mentioned in Para No.1 of the complaint. After depositing the aforesaid amount, the complainants came to know from some reliable sources that OPs are not going to handover the possession of the said showroom as well as the money deposited by them as till now, neither the possession has been given nor the money has been returned to any of the complainants. As per them, OPs have neither completed the construction nor handed over the possession of the premises as per the agreement arrived at between the parties. The grouse of the complainants is that the possession of the showroom was to be delivered to her by the OPs within two years but till the filing of the complaint, it has not been delivered to her. Alleging deficiency in service as well as unfair trade practice on the part of OPs, the complainants have filed the present complaint seeking refund of an amount of Rs.42,80,000/- along with interest @18% per annum; Rs.14.5 Lacs as compensation for mental agony and harassment besides Rs.33,000/- as costs of litigation.

2.                 The complaint was opposed by the OPs admitting the issuance of Acceptance-cum-Demand letter dated 28.2.2006 to the complainant. As per the OPs, it was nowhere mentioned in this letter that the showroom was allotted as alleged by the complainant. OPs next pleaded that vide letter-dated 28.2.2006, it was intimated to the complainant that they were registered for the allotment of commercial showroom and the mode of payment was also mentioned in the same. It is pleaded that the complainant Sh. Narinder Kumar Dhawan failed to deposit the due payment as per acceptance-cum-demand letter dated 28.2.2006, which were due on 28.8.2006, 28.11.2006, 28.2.2007, 28.5.2007 and 28.5.2008 despite various letters/reminders issued to him from time to time. As per the OPs, they wrote letters dated 28.2.2009 and 8.4.2009 to the complainants to deposit Rs.20 lacs failing which his registration number was to be cancelled and the amount paid by him was to be forfeited but the amount was not paid and the registration No.RCSM-09 was cancelled and the amount paid by Sh.Narinder Kumar Dhawan was forfeited. It is also stated that the construction and development work of the shopping mall at the site was in full swing and for the goodwill gesture, they are ready and willing to pay the damages @Rs.10/- per sq. feet. Per month to the complainants as mentioned in the term and condition No.12 of the application form. As regards the delay, it is stated by the OPs that the delay is only due to force majeure circumstances and the same is not intentional. Denying rest of the averments of the complaint and pleading no deficiency in service on their part, OPs prayed for dismissal of the complaint.

3.                 The parties produced evidence in support of their contentions.

4.                 We have heard the learned counsel for the parties and have perused the record.

5.                 At the very outset, it is pertinent to mention here that the points in issue have already been dealt with and settled by this Commission vide order dated 17.12.2010 passed in Complaint Case No.17 of 2010 titled ‘Smt. Vimal Gupta Vs. The Shalimar Estates (P) Ltd. and another’ vide which three more similar complaints were also allowed.

6.                     There is no dispute about it that as per Clause 12 of Annexure D-1 i.e. the terms and conditions, the possession of the showroom was to be given within two years from issue of Acceptance-cum-Demand letter subject to force majeure circumstances. The said letter (Annexure D-2) was issued on 28.2.2006. The OPs were, therefore, liable to deliver the possession of the premises to the complainant by 27.2.2008. This is also admitted between the parties that the possession of the premises has not so far been delivered, which amounts to deficiency in service on the part of OPs.

7.                     The period of two years could be extended due to force majeure circumstances. It was for the OPs to mention in their written statement as to what those circumstances are and whether the same are beyond their control due to which the construction of the project could not be completed or why the period of two years should be extended. However, they did not mention any such circumstance. Merely writing or arguing that the construction could not be completed due to force majeure circumstances is not enough without specifying the same so as to make the said circumstances subject to judicial scrutiny. It was, therefore, willful neglect on the part of OPs not to stick to the construction schedule of completing the construction within two years.

8.                     The learned counsel for the OPs admitted that in view of Clause 12 of the terms and conditions (Annexure D-1), they are liable to pay Rs.10/- per square feet per month for the period of delay if they fail to complete the construction within two years. Their contention is that they are ready to pay the said amount and therefore, the complainants are not entitled to the refund of the amount. We do not find any merit in this contention also. If Rs.10/- per square feet per month would justify the claim of the complainants and no further relief can be granted to them, that would give unnecessary advantage to the OPs because the OPs may neglect to complete the construction for any number of years they like simply by paying this compensation of Rs.10/- per square feet per month. On the other hand, they have obtained a sum of Rs.42,80,000/- from the complainants vide  receipts (Annexures C-1 to C-6) and interest even at the modest rate of 8% per annum comes out to Rs.2,62,400/- as against the compensation calculated @Rs.10/- per Sq. Feet per month i.e. (600 Sq. Ft. x Rs.10=Rs.6,000 per month), which they would pay in view of Clause 12 of the agreement. In our opinion, the compensation @Rs.10/- per sq. feet per month may be sufficient compensation if the OPs intend to take possession of the premises by condoning the delay and not in that eventuality, where due to the violation of the agreement, the complainant wants the refund of the amount.

9.                     The dishonesty of the OPs is clear from the fact that even after a lapse of more than 30 months, the OPs have not paid a single paise to the complainant. The OPs, therefore, themselves neglected to perform this part of the contract and they cannot say that Rs.10/- per sq. feet would be sufficient compensation or they were ready to pay the compensation agreed under Clause 12 of the terms and conditions (Annexure D-1).

10.                   As per Receipts (Annexures C-1 to C-5), all the three complainants deposited the respective amounts as detailed in Para No.1 of complainant as also admitted by the OPs in their written statement. The entire default lies on the part of OPs in not completing the construction within the period agreed between the parties and thus, they are liable to refund the respective amounts deposited by the complainant with interest.

11.                   It is argued by the learned counsel for the OPs that in the earlier litigation against the OPs, this Commission in Appeal No.493/2009 titled ‘Shalimar Estates (P) Ltd. Vs. Sarabjeet Singh and others’ allowed the compensation @Rs.10/- per sq. feet per month of the super area for the period of delay and therefore, the same order should be passed in this case also. The said order, however, is not applicable in the present case. In those cases, the complainants were intending to get compensation of the premises even inspite of delay in delivery of possession. In that case, Clause 12 was applicable and the compensation @Rs.10/- per sq. feet per month was awarded by this Commission. In the present cases, the situation is different because the complainants are no longer willing to condone the delay or to get possession of the premises and rather they want the money deposited by them back from the OPs. This order is, therefore, of no help in the present case.

12.                   It is pertinent to mention that in the case of Vimal Gupta Vs. Shalimar Estates (P) Ltd. and another (supra), we have ordered the refund of the amounts with interest 15% per annum keeping in view Para No.46 of the terms and conditions (Annexure D-1) in view of which, the complainants were liable to pay the installment amount along with interest @15% per annum. In the present case also, the OPs shall pay the same rate of interest i.e. 15% per annum on the amounts received by them.

13.                   The complainants have been harassed by the OPs unnecessarily even for getting back their own amount. In such cases, where the amounts are being refunded, the complainants are entitled to compensation not only for harassment caused to them by not fulfilling their promises but also for the increase in the prices of the properties. We are, therefore, of the opinion that the OPs shall also pay Rs.50,000/- to each of the complainant as compensation for mental and physical harassment to them.

14.                   In view of the above discussion and in the light of observations made in the case of Vimal Gupta Vs. The Shalimar Estates (P) Ltd. and another (supra), we are of the opinion that the present complaint succeeds and the same is accordingly allowed. The OPs are directed to refund the respective amounts of Rs.21,20,000/-, Rs.16,20,000/- and Rs.5,40,000/- (totaling Rs.42,80,000/- as mentioned in Para No.1 of the complaint) to the respective complainants along with interest @15% per annum since the date of deposit of the said amount till the same is paid back to the them. The OPs shall also pay Rs.50,000/- as compensation to each of the complainant for mental and physical harassment and Rs.10,000/- as costs of litigation. If the amounts mentioned above are not refunded and the compensation is not paid within one month from the date of receipt of copy of the order, the OPs would be liable to pay penal interest @18% per annum w.e.f. the date of the order till its actual payment to the complainants.

15.               Copies of this order be sent to the parties free of charge.

Pronounced.

25^th January 2011.

Sd/-

 [NEENA SANDHU]

PRESIDING MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(Complaint No.24 of 2009)

Argued by:          Sh. Saurab Bajaj, Advocate proxy for

                    Sh. Hemant Saini, Advocate for the complainants.

                    Sh. Arun Kumar, Advocate for the OPs.

Dated the 25^th day of January, 2011.

ORDER

                    Vide our detailed order of even date recorded separately, this complaint has been allowed.

                        (JAGROOP SINGH MAHAL)                      (NEENA SAHDHU)

                                   MEMBER                                     PRESIDING MEMBER