Chandigarh

StateCommission

CC/66/2019

Shakti Kumar Jain - Complainant(s)

Versus

TDI Infrastructure Ltd. - Opp.Party(s)

Gaurav Gupta Adv.

20 May 2020

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	66 of 2019
Date of Institution	:	20.03.2019
Date of Decision	:	20.05.2020

 

1.   Shakti Kumar Jain S/o Raj Kumar Jain
2.   Manju Jain W/o Shakti Kumar Jain

          Both R/o H.No.1406, Progressive Society, Sector 50-B, Chandigarh-         160047.

 

……Complainants

V e r s u s

1. TDI Infratech Ltd. (previous name: Taneja Developers & Infrastructure Limited) through its Chairman & Directors, 10 Shaheed Bhagat Singh Marg, New Delhi-110001.
2. Mr.Rohit Goggia, Project-Head/Vice President, TDI Infratech Ltd., Regional Office, SCO 1098-99, Sector 22-B, Chandigarh-160022.
3. Project-Head/Vice President, TDI Infratech Ltd., SCO 144-145, Sector 117, International Airport Road, TDI City, Mohali, Punjab 140301.
4. TDI Facilities and Maintenance Limited through its Directors, 9, Kasturba Gandhi Marg, New Delhi 110001

2^nd Address:- through TDI Infratech Regional Office, Regional Office, SCO 1098-99, Sector 22-B, Chandigarh-160022.

3^rd Address:- through TDI Infratech Ltd., SCO 144-145, Sector 117, International Airport Road, TDI City, Mohali, Punjab 140301.

5. TDI Recreation and Amusement Company Limited through its Directors, Regd. Office: 9, Kasturba Gandhi Marg, New Delhi DI 110001.

2^nd Address:- through TDI Infratech Regional Office, Regional Office, SCO 1098-99, Sector 22-B, Chandigarh-160022.

3^rd Address:- through TDI Infratech Ltd., SCO 144-145, Sector 117, International Airport Road, TDI City, Mohali, Punjab 140301.

…..Opposite parties

 

Complaint under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS. PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

Present:               Sh.Gaurav Gupta, Advocate for the complainants.

       Sh. Puneet Tuli, Advocate for the opposite parties No.1 to 3.

       None for opposite parties no.4 and 5.

      

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The complainants are seeking the refund of amount of Rs.34,58,800/-, paid by  them, to the opposite parties towards price of the residential plot bearing no.1743, measuring 192 square yards, booked by them in a Mega Housing Project known as ‘TDI City’’, Sector 110-111, Mohali. It is case of the complainants that allotment letter in respect of the plot in question was issued  to them on 05.07.2012 (Annexure C-5) and buyer’s agreement (Annexure C-7) was got signed from them only on 07.08.2017, despite the fact that the date thereupon was mentioned as 08.08.2012. Total price of the said plot was fixed at Rs.33,88,800/- besides other charges.

                   It has been averred that despite the fact that substantial amount Rs.34,58,800/- against Rs.33,88,800/- stood paid to the opposite parties, as per demands raised by them, from time to time, during the period between 31.05.2012 to 21.08.2012, yet, possession of the plot in question was not offered till 12.08.2017. It has been stated that instead of offering possession of the plot, the opposite parties vide letter dated 15.12.2017 (Annexure C-9) asked the complainants to get conveyance deed executed before 31.03.2018. On receipt of the said letter, the complainants vide letters dated 15.02.2018 and 23.04.2018 (Annexures C-10 and C-11) requested the opposite parties to provide details regarding handing over taking over of the plot in question; execution of sale deed and also amount to be deposited towards stamp duty charges etc., but the same went unanswered. Compelled under the circumstances, the complainants sought information dated 08.07.2018 and 17.09.2018 (Annexure C-12 and C-13), under the RTI Act, 2005, from the competent authorities, which revealed that the opposite parties have not yet obtained completion certificate in respect of the project in question. Furthermore, visit to the project site by the complainants on 26.12.2017, 03.03.2019and also on 10.03.2019, revealed that development work was still pending and basic amenities were yet to be provided there. Under those circumstances, the complainants sent letters/emails dated 17.09.2018 and 27.02.2019 (Annexure C-15 colly.), seeking refund of the amount paid but the opposite parties flatly refused to do so.

                   By stating that the aforesaid act and conduct of the opposite parties amount to deficiency in providing service and adoption of unfair trade practice, the complainants have filed this complaint seeking refund of amount paid alongwith interest, compensation etc.

2.           The complaint of the complainants has been contested by opposite parties no.1 to 3, on numerous grounds,  inter alia, that the complainants being investors, did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act; that this Commission did not vest with pecuniary and territorial jurisdiction to entertain this complaint; that the complaint filed is time barred; that complicated questions of facts and law are involved in this complaint, as such, the same cannot be entertained by this Commission, proceedings before which are summary in nature; that only Civil Court has jurisdiction to entertain and decide this complaint; that opposite parties no.4 and 5 are separate legal entities and have no concern with the dispute in question.
3.           On merits, it has been admitted by opposite parties no.1 to 3 that they have received the amount as asserted by the complainants towards sale of the plot in question. It has been stated that letter of intent (LOI) (Annexure R-1) in respect of the project in question was obtained from the competent Authorities on 31.08.2006; that the project in question is exempted from the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short the PAPR Act); that  possession of the plot in question was offered to the complainants in August 2012; that partial completion (Annexure R-10) in respect of the project in question was obtained on 25.06.2015; that thereafter vide letter dated 15.12.2017 (Annexure R-7) followed by reminder dated 18.12.2017 (Annexure R-8) the complainants were requested to get sale deed executed in respect of the plot in question and also to start construction thereon but they failed to do so; that even maintenance agreement has been signed by the complainants, as such, now they cannot say that possession of the plot was not handed over to them.

                   However, it has been candidly admitted by opposite parties no.1 to 3 that vide Advance Registration Form, the complainants had registered themselves for residential plot in the future township of the Company. Remaining averments of the complaint have been denied.

4.           Opposite parties no.4 and 5 in their joint written reply stated that since no allegations qua deficiency in providing service have been leveled against them, as such, this complaint is liable to be dismissed against them; and that they are providing their services to the complainants, proactively, under maintenance agreement dated 22.08.2012 (Annexure C-8).
5.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavits. In pursuance thereof, they have adduced evidence and also produced numerous documents.
6.           We have heard the contesting parties and have gone through record of the case, very carefully.
7.           First of all coming to the objection regarding territorial jurisdiction, it may be stated here that in the present case, Advance Registration Form dated 31.05.2012 (Annexure C-4) in respect of the plot in question was received by Regional Office of opposite parties no.1 to 3 at Chandigarh i.e. SCO 1098-99, Sector 22-B, Chandigarh. Not only as above, even as per clause 40 of the agreement dated 08.08.2012 (Annexure C-7), the parties have agreed that the Courts at Mohali/Chandigarh shall have jurisdiction in all the matter arising out in respect of the transaction in question. This Commission, therefore, has territorial jurisdiction to entertain this complaint. As such, objection taken in this regard is rejected. 
8.           As far as objection taken to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to opposite parties no.1 to 3, to establish that the complainants have purchased the plot in question to indulge in ‘purchase and sale of plots’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants are consumers as defined under Section 2(1)(d) of the Act. Objection taken in this regard is rejected.
9.           As far as objection taken with regard to pecuniary jurisdiction is concerned, it may be stated here that if the total value of the plot in question i.e. Rs.33,88,800/- plus compensation claimed by way of interest @18% p.a. on the deposited amount i.e. Rs.34,58,800/-; and other reliefs claimed are clubbed together, it fell above Rs.20 lacs and below Rs.1 crore, as such, this Commission has pecuniary jurisdiction to entertain this complaint. In this view of the matter, objection taken stands rejected.
10.           At the time of arguments, it has been vehemently contended by Counsel for opposite parties no.1 to 3 that possession of the plot in question was offered to the complainants in August 2012, after completing the development work but they failed to take over the possession, as a result whereof, letter dated 15.12.2017 (Annexure R-7) followed by reminder dated 18.12.2017 (Annexure R-8) was sent to them, to get sale deed executed and also to start construction but they failed to do so; that since maintenance agreement has been signed by the complainants on 22.08.2012, as such, now they cannot say that possession of the plot was not handed over to them. It has been further contended with vehemence that obtaining of partial completion dated 25.06.2015 (Annexure R-10) in itself is sufficient to prove that development work and basic amenities in the area, where the plot in question is located are complete in all respects.

                   During the pendency of the complaint i.e. after filing written statement, Counsel for opposite parties no.1 to 3 placed on record letter dated 07.08.2012 (Annexure R-D)  to prove that possession in respect of the plot in question had been offered to the complainants on 07.08.2012.

11.           On the other hand, while denying receipt of letter dated 07.08.2012, Counsel for the complainants contended that despite the fact that substantial amount Rs.34,58,800/- against the basic price of Rs.33,88,800/- had been paid to opposite parties no.1 to 3, as per demands raised by them, from time to time, during 31.05.2012 to 21.08.2012, yet, actual physical possession of the plot in question was not offered. Thereafter, when, vide letter dated 15.12.2017 (Annexure C-9) the complainants were asked to get conveyance deed executed before 31.03.2018, the complainants sent letters dated 15.02.2018 and 23.04.2018 (Annexures C-10 and C-11) requesting opposite parties no.1 to 3, to provide details regarding handing over/taking over of the plot in question; execution of sale deed and also amount to be deposited towards stamp duty charges etc., but the same went unanswered. It has been further contended with vehemence that since it came to the knowledge of the complainants that opposite parties no.1 to 3 have not completed development work and basic amenities at the project site and also the project was launched in contravention of PAPR Act, as such, left with no choice, they sought refund of the amount paid, yet, opposite parties no.1 to 3 failed to do so.
12.           Under above circumstances, the following questions emerged for consideration:-
    1. Whether the project of opposite parties no.1 to 3 is exempted from the provisions of PAPR Act?
    2. Whether opposite parties no.1 to 3 were in position to launch the project in question and sell units/plots to the general public including the complainants in the year 2012?
    3. Whether possession of the plot in question was ever offered to the complainants or not?

 

13.           First, we will deal with the question, as to whether, the project of opposite parties no.1 to 3 is exempted from the provisions of PAPR Act. It may be stated here that Counsel for opposite parties no.1 to 3 has strongly placed reliance on Clause (iii) of Letter of Intent dated 31.08.2006 (Annexure R-1) issued by Punjab Urban Planning and Development Authority, Mohali and also Notification (Annexure R-3) issued by the Government of Punjab, to say that the project in question stood exempted from the provisions of PAPR Act. It may be stated here that perusal of Clause (a) of the said letter (Annexure R-1)  clearly says that in order to avail the said exemption, opposite parties no.1 to 3 were liable to pay external development charges in accordance with the PAPR Act, 1995/Periphery Policy etc., whichever is applicable. It is further evident from Clause (m) of the said letter (Annexure R-1) that the company shall carry out construction at the project site, only after getting the building plans approved from the Competent Authority as per the PUDA Building Bye-Laws and that too after the payment of the licence fee, external development charges and change of land use charges in totality. Similar conditions were found mentioned in Annexure R-3, referred to above. Furthermore, as per Clause (vii) of Annexure R-3, it was made clear by the competent authority to opposite parties no.1 to 3 that the Company will not carry out any works on the site, till the said conditions are fulfilled.

                   However, when we go through the record of the case, it can safely be said that opposite parties no.1 to 3 have failed to fulfil the conditions, referred to above. Our view is supported by the list of Defaulters (Annexure-CX) placed on record by the complainant during pendency of this complaint, issued by the GMADA, wherefrom it is evident that opposite parties no.1 to 3 have failed to make the payment of EDC, Licence Fee, SIF and PR-4/7-Cess, as on 30.06.2019. The said list has gone unrebutted by opposite parties no.1 to 3. At the same time, opposite parties no.1 to 3 have placed on record letter dated 01.07.2019 (Annexure R-A), whereby a request to avail the benefits of moratorium policy has been made by them to the GMADA, so that they are able to make payment of the overdue amount of EDC, Licence Fee, SIF and PR-4/7-Cess. The candid admission of opposite parties no.1 to 3 with regard to availing of benefits of moratorium policy on account on non-payment of the aforesaid dues, in itself is sufficient to come to the conclusion that there was violation of terms and conditions of Annexures R-1 and R-3 and the project in question no more remained exempted under the PAPR Act.

14.           Now we will deal with the question, as to whether, opposite parties no.1 to 3 were in a position to launch the project in question and sell units/plots to the general public including the complainants in the year 2012? It may be stated here that as per terms and conditions contained in Letter of Intent dated 31.08.2006 (Annexure R-1), before launching the project in question and selling the units/plots therein, opposite parties no.1 to 3 were bound to get layout plans approved/cleared; obtain environmental clearance; and NOC from the Punjab Pollution Control Board. Relevant conditions contained in LOI are reproduced hereunder:-  

(vi)       The project shall not be advertised/launched and no money will be collected from general public for allotment of land/plot/flat any space till such time the layout plans are cleared by the Competent Authority.

(g)        The Promotor/Developer shall not be allowed to execute the development works on the project land except in accordance with the environmental clearance from the Punjab Pollution Control Board, following the Environmental Impact Assessment process.

                  

                   However, when we go through the letter dated 09.05.2014 (at page 152 of the paper book) issued by the Punjab Pollution Control Board, Patiala, it is found that permission from the said Department in respect of project in question was obtained by opposite parties no.1 to 3, for the first time, vide letter dated 27.09.2013. Similarly, environmental clearance was obtained by opposite parties no.1 to 3 from the State Level Environment Impact Assessment Authority, Punjab, vide letter dated 06.02.2014 (at page 156 of the paper book). Furthermore, when we go through the contents of letter dated 01.07.2019 (Annexure R-A) placed on record by opposite parties no.1 to 3, it is found that a request has also been made by the Company to the Additional Chief Administrator, GMADA, to approve the layout plans of the project in question, meaning thereby that even the layout plans in respect of the project in question were not got approved till 01.07.2019.  Under these circumstances, we are of the considered opinion that in the absence of approval of layout plans and also necessary permissions having been obtained by opposite parties no.1 to 3 from Punjab Pollution Control Board and State Level Environment Impact Assessment Authority, Punjab, the project in question was farce, which act amounts to  unfair trade practice and deficiency in providing service. Infact, the money has been collected with animus of cheating and fraud. Furthermore, it is settled law that a builder is duty bound to ensure that before accepting the amount of booking, necessary permissions/sanctions have been granted for launching the project and selling the units/plots therein. It was so said by the Hon’ble National Commission in Omaxe Limited and anr. Vs. Dr. Ambuj Chaudhary, First Appeal No. 300 of 2012, decided on 13.02.2017. The project in question was launched and units/plots therein were sold to the innocent buyers, in complete violation of the mandatory requirements as per Law, just with a view to grab money from them. It is therefore held that opposite parties no.1 to 3 were not in a position to launch the project in question and sell units/plots to the general public including the complainants in the year 2012. By launching the project without obtaining necessary approvals/sanctions referred to above, opposite parties no.1 to 3 indulged into unfair trade practice.

15.           Now we will deal with the question, as to whether, possession of the plot in question was ever offered to the complainants or not?  Counsel for opposite parties no.1 to 3 placed reliance on letter dated 07.08.2012 (Annexure R-D), to prove that possession of the plot in question was offered to the complainants but they failed to take over the same and also failed to get the sale deed executed, as a result whereof, reminders were sent to them, in the year 2017. We do not agree with the contentions raised by opposite parties no.1 to 3, for the reasons to be recorded hereinafter.

                   It may be stated here that, in the first instance, not even a single word has been mentioned by opposite parties no.1 to 3 in their written statement that possession of the plot in question had been offered to the complainant vide letter dated 07.08.2012. It was for the first time, during pendency of this complaint, that the said letter dated 07.08.2012, was placed on record by opposite parties no.1 to 3 and that too after filing of the written statement. It has not been clarified by opposite parties no.1 to 3 as to why the said letter was not placed on record alongwith the written statement. On the other hand, the complainants have disputed receipt of the said letter. In the absence of any proof of delivery of the said letter to the complainants, the same is of no help to opposite parties no.1 to 3.

                   Furthermore, it is very significant to mention here that it is evident from allotment letter dated 05.07.2012 (Annexure C-5) that the plot in question was allotted in favour of the complainants, in the forth coming integrated township i.e. TDI City, Sector 110-111, Mohali, Punjab, meaning thereby that by July 2012, the project was still to be launched. Under these circumstances, it is not imaginable that if the project was to be launched after July 2012, possession of the plot in question could be delivered by the very next month vide letter dated 07.08.2012.

                   There is another reason for this Commission, to disbelieve that possession of the plot in question could not have been offered vide letter dated 07.08.2012. How is it possible that the buyers agreement containing detailed terms and conditions in respect of the plot in question was executed between the parties on 08.08.2012, yet, possession thereof had been offered one day earlier to it i.e. on 07.08.2012. Another cogent reason to disbelieve that possession of the plot in question was not offered to the complainants vide letter dated 07.08.2012, is Clauses 19 and 20 of the said agreement, which says that possession of the plot was still to be handed over to the complainants. Relevant part of Clauses 19 and 20 reads as under:-

                   Clause 19:-

“That, the Seller, shall executed the Sale Deed registered in respect of the said Plot, only after (a) the said Plot has been demarcated at site (b) the entire sale consideration and other dues as defined herein are received and (c) the entire cost of stamp paper, registration charges, miscellaneous expenses etc. have been received. The Possession of the said Plot will also be given to the Purchaser(s) only when the Purchaser(s) makes payments of full sale price and other dues as stipulated in this Agreement......”.

 

Clause 20:-

 

“.....That, The Purchaser(s) shall make all the payments, get the Sale Deed executed and registered and shall take possession of the Said Plot within 30 days of the Seller’s written notice of offer for possession to him/her....”

 

Thus, if the possession of plot in question had already been allegedly delivered to the complainants vide letter dated 07.08.2012, then why it was mentioned in the clauses, referred to above, that possession of the plot in question shall be given to the complainants after the said plot is demarcated; entire sale consideration and other dues have been received and after getting the sale deed executed and registered. Had the possession of plot been delivered to the complainants vide letter dated 07.08.2012, then it would have been clearly mentioned in the said agreement dated 08.08.2012 that possession of the plot has already been taken over by the complainants on 07.08.2012.  

16.           Bonafides of the complainants is also proved from the fact that on receipt of letter dated 15.12.2017 (Annexure C-9) informing them that since possession of the plot in question has been offered/delivered to them, as such, they should come forward for execution of sale deed, the said letter was challenged by the complainants by way of sending letter dated 15.02.2018 (Annexure C-10) followed by reminders dated 23.04.2018 (Annexure C-11), 17.09.2018 (Annexure C-15) and email dated 27.02.2019 but the same went unanswered by opposite parties no.1 to 3. Had the Company offered possession of the plot vide letter dated 07.08.2012, they would have definitely answered the said letters/emails and would have provided copy of the said letter to the complainants stating that possession has already been offered but it is not so, the case of opposite parties no.1 to 3. In these circumstances, non reply of the said letters also attracts adverse inference against opposite parties no.1 to 3 that possession of the plot was not offered to the complainants vide letter dated 07.08.2012. Even otherwise, in the absence of the approval of final layout plans; NOC from the Punjab Pollution Control Board and Environmental Clearance from the competent authorities, opposite parties no.1 to 3 were not even entitled to launch the project and sell the units/plots therein, what to speak of offering possession to the complainants in 2012. As stated above, though NOC from Punjab Pollution Control Board was obtained in the year 2013 and Environmental Clearance was obtained in the year 2014, yet, the layout plans were not approved by the competent authorities even till July 2019, as opposite parties no.1 to 3 failed to deposit the due amount, as a result whereof their name reflected in the defaulter list, referred to above, issued by the GMADA. Nothing has been placed on record by opposite parties no.1 to 3, as to whether, the said due amount has been deposited by them with the GMADA or not. In the absence of making payment of the said amount, even the partial completion certificate dated 25.06.2015 (Annexure R-10) issued by the GMADA, also has no value because perusal of contents thereof reveals that the same was issued subject to many conditions including the one mentioned at sr. no.xviii) to the effect that “the Promoter shall be liable to pay arrears, if any, and any other taxes/charges imposed by the Govt./Competent Authority”.  Furthermore, it has been clearly mentioned at sr.no.xix) of the said certificate that “out of above, if any, condition is not fulfilled, then this Partial Completion Certificate will be cancelled”. Since, in the present case, as stated above, opposite parties no.1 to 3 failed to make payment towards EDC and other charges to the Govt. concerned, as a result whereof, their name stood reflected in the defaulter list as on June 2019, as such, no help can be obtained by them from the said partial completion certificate, which stood automatically cancelled, for non fulfillment of the conditions contained therein.  

                   Under above circumstances, we are of the considered opinion that the project launched by opposite parties no.1 to 3 is farce. It is therefore held that opposite parties no.1 to 3 were not in a position to deliver possession of the plot in question, in the year 2012, for the reasons mentioned above and, as such, no help therefore can be drawn by them from the letter dated 07.08.2012 aforesaid.

17.           The plot in question was booked by the complainants, as far as back in June 2012. Substantial amount of Rs.34,58,800/- had been paid by the complainants between 31.05.2012 to 21.08.2012, yet, possession of the plot in question was not delivered within a reasonable period say two to three years, from the date of allotment. On the other hand, it is proved on record that the opposite parties no.1 to 3 were not competent to sell plots or flats and to collect money from the complainants and other prospective buyers, in 2012, as far as the present project is concerned. Since not even a single document has been placed on record by opposite parties no.1 to 3, to counter the allegations leveled by the complainants, it can very well be said that the project in question was launched and units/plots therein were sold to the innocent buyers, in complete violation of the mandatory requirements as per Law, just with a view to grab money from them. The aforesaid act of opposite parties no.1 to 3 amounted to grave deficiency in providing service, negligence and adoption of unfair trade practice on their part.

                   Under these circumstances, we are of the considered opinion that we cannot make the complainants to wait for an indefinite period, in the matter. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date or if no period is mentioned in the agreement, within a reasonable period say two to three years from the date of booking, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. Our this view is supported by the observations made by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. This view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that if we order refund of the amount paid alongwith suitable interest, that will meet the ends of justice. 

18.           The complainants are therefore held entitled to get refund of the amount actually paid by them alongwith interest @12% p.a. from the respective dates of deposits in view of principle of law laid down by the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Recently also, under similar circumstances, the Hon’ble National Commission in Anil Kumar Jain & Anr. Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019, ordered refund of the amount paid, alongwith interest @12% p.a.

                   At the same time, opposite parties no.1 to 3 are also held liable to compensate the complainants for deficiency in providing service, negligence and adoption of unfair trade practice and also causing them mental agony and harassment.

19.           As far as objection taken to the effect that the complaint filed is beyond limitation, it may be stated here that since it has been held above that actual physical possession of the plot in question was never delivered to the complainants and also the amount paid has also not been refunded,  as such, there is a continuing cause of action in their favour in view of principle of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah  and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer and also in Ansal Housing And Construction Ltd. Vs. Tulika Gupta & Anr., First Appeal No. 545 of 2017, decided on 24 Aug 2017, wherein it was observed by the Hon’ble National Commission that “…ordinarily if the  possession is not given to the allottees, they would have a recurrent cause of action to file the complaint till the time either the possession was given to them or the amount paid by them was refunded….”.. As such, objection taken in this regard is rejected.
20.           As far as liability of opposite parties no.4 and 5 is concerned, it may be stated here that since in the present case, the complainants have sought refund of the amount paid to opposite parties no.1 to 3, as such, we are of the considered opinion that opposite parties no.4 and 5 being the maintenance agency, have no role in that regard and accordingly this complaint deserves to be dismissed against them.
21.           For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties no.1 to 3, jointly and severally, are directed as under:-

1. To refund the amount of Rs.34,58,800/- to the complainants, alongwith interest @12% p.a., from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.34,58,800/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/- to the complainants within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

22.           Complaint against opposite parties no.4 and 5 is dismissed with no order as to costs.
23.           However, it is made clear that in case the complainants have availed housing loan from any Bank(s)/financial institution(s) for making payment towards price of the said plot, it shall have  the first charge of the amount payable, to the extent, the same is due to be paid by the complainants.
24.           Certified Copies of this order be sent to the parties, free of charge.
25.           The file be consigned to Record Room, after completion.

Pronounced.

20.05.2020

Sd/-

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

Sd/-

(RAJESH K. ARYA)

 MEMBER

 Rg.