….Opposite parties

Present:-               Sh.Rakesh Bajaj, Advocate for the complainants. Sh.Rajesh   Verma, Advocate for the opposite parties           no.1 and 2.

                             Sh.Harish Mehla, AAG for opposite party no.3.

                             Sh.Sajan Singh, Advocate for opposite party no.4.

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The complainants have filed this complaint seeking following relief against the opposite parties:-

1. To handover the actual, legal, physical possession of the office space No. 508 and 509 alongwith occupation certificate/completion certificate issued by concerned authorities alongwith all the basic amenities promised by the OPs.
2. To pay 18% interest per annum on various dates of deposits till the handing over the possession.

In failure to that:-

3. To refund the entire amount i.e. Rs.1,33,23,068/- alongwith 18% interest on various deposits dates till its realization.
4. To pay Rs.20,00,000/- for physical harassment and mental agony.
5. To pay the litigation expenses Rs.1,00,000/-.

OR

          Any other relief which this Commission deems fit.

2.           It is the case of the complainants that initially, vide applications  dated 29.10.2008, Annexures C-1 and C-2 they were allotted commercial units No.503 and 504 measuring 1316 square feet and 1243.5 square feet respectively, total measuring 2559.5 square feet, 5th floor in the project of the opposite parties named UNICITY Project, UNICITY Business park near Hotel Marc Royal, Zirakpur Kalka Highway, Zirakpur, Distt. SAS Nagar, Punjab. After allotment of said units, the complainants entered into agreements dated 30.03.2009 (Annexures C-3 and C-4). Basic sale price of unit bearing No.503 was fixed at Rs.5500/- square feet excluding PLC, car parking charges, electricity load charges and air condition charges etc. Total sale consideration of unit no.503 was fixed at Rs.71,81,213/- and after down payment rebate of 13% i.e. Rs.9,33,557/-, its effective costs after rebate came to Rs.62,47,655/-. Similarly, for unit No.504 basic sale price was fixed at Rs.5500/- square feet excluding PLC, car parking charges, electricity load charges and air condition charges etc. totaling to Rs.75,99,900/- and after 13% down payment rebate i.e. 9,87,987/-, its effective costs came to Rs.66,11,913/-. Thus, total sale consideration of the said units came to Rs.1,28,59,518/-. The complainants paid   total amount of Rs.1,33,23,068/- of the said units including car charges and electricity load charges as per demands made by the opposite parties. As per clause 32 of the buyer's agreements dated 30.03.2009, possession of the units in question were to be delivered on or before 30.06.2010 and in failure to do so,  the opposite parties were liable to pay Rs.5/- per sqr.ft. per month as penalty to the complainants. It is the definite case of the complainants that despite the fact that the entire sale consideration stood paid to the opposite parties, they showed their inability to deliver possession of units no.503 and 504 and  requested the complainants to relocate to other units, with the promise that possession of those relocated units will be delivered within a period of 6 months after executing the new extended buyer's agreement. Accordingly, the complainants agreed with the proposal given by the opposite parties and as such they were allotted new units bearing No.508 and 509 in place of 503 and 504 with increased areas, yet, without charging any price for the increased area. New agreement dated 14.07.2015 (Annexure C-5) in respect of the said relocated units No.508 and 509 was executed between the parties, with few revised terms and conditions. As per clause No.4 of the extended agreement, it was mentioned that possession of units No.508 and 509 complete in all respects, will be delivered not later than 6 months i.e. 14.1.2016 and it was clearly mentioned in extended agreement that it is final binding on both the parties and that all other terms and conditions of the agreements dated 30.3.2009 (previous agreements) shall remain in force. However, possession of relocated units No.508 and 509 was also not delivered  by the opposite parties.  On the other hand, the opposite parties started making demands in  respect of unit No.508 and 509, despite the fact that entire sale consideration stood paid by the complainants. It also came to the notice of the complainants that even occupation and completion certificates have not been obtained by the opposite parties for the said project.  Under those circumstances, the complainants served legal  notice dated 20.04.2021, Annexure C-20 upon the opposite parties in the matter, but to no avail.  Hence this complaint.
3.           The complaint was contested by the opposite parties. Opposite parties no.1 and 2 in their joint written version, while taking numerous objections stated that this complaint is time barred; that this complaint is not maintainable; that the complainants have concealed material facts from this Commission; that the present complaint involves complicated facts and law and as such, cannot be decided under the summary proceedings under the Consumer Protection Act; the complainants are not consumers but are investors etc. On merits, it has been stated that after receipt of the demand notice issued by the opposite parties no.1 and 2 in respect of Unit No.508 & 509, the complainants approached them in the month of April 2017 and took over physical possession of the said units i.e. Unit No.508 & 509 measuring 916 sq. ft. and 2098 sq. ft. respectively, under oral agreement and now only  Sale Deed is required to be executed, which they have failed to execute. The opposite parties no.1 and 2 repeatedly requested the complainants to come forward and get the Sale Deed executed and to pay the maintenance charges @Rs.10/- per sq. ft. as agreed, but instead of doing that they have filed this complaint.   After taking over the possession of the units, the civil remedy was available to the complainants to redress their grievances in case there is any fault on the part of the opposite parties no.1 and 2 for not getting the Sale Deed executed in respect of the said units.  There are nine units situated on the 5th floor of the said project, out of which sale deeds of six units have been executed, two units have been allotted to the complainants and one is with the opposite parties no.1 and 2. The allotted units bearing No.502, 503, 504, 505, 506, 507 are already occupied by respective buyers, who are running commercial activities except the units allotted to the complainants. Photographs placed on record show that the project is complete in all respects. The opposite parties no.1 and 2 vide application dated 20.02.2017 applied for completion certificate in the office of Municipal Council Zirakpur and thereafter only the complainants took over the physical possession of the units.  Rest of the averments made by the complainants in their complaint were denied by the opposite parties no.1 and 2.
4.           Opposite party no.3 in his written version stated that the present complaint is bad for misjoinder of parties; that this complaint is time barred; that there is no cause of action arising against opposite party no.3 to the complainants; that opposite party no.3 has retired from the Partnership Firm-(UNICITY Projects Pvt. Ltd.) and as such has no liability in the matter; and that opposite party no.3 is suffering from  stage 4 brain cancer. Rest of the averments made by the complainants in their complaint were denied by opposite party no.3.
5.           Opposite party no.4 in his written version stated that this complaint is not maintainable; the complainants are not consumers; the complainants have suppressed material facts from this Commission etc. On merits, it has been stated that  on 12.06.2008, a partnership deed was executed to constitute a partnership firm having 6 persons as its partner namely Naveen Bansal, Sumit Garg, Hem Raj Garg, Pardeep Garg, Jiwan Bansal and opposite party no.4 to carry on the business under the name and style of M/s Unicity Projects. During the course of business, the said firm entered into an agreement with the complainants to provide commercial space unit no. 503 and 504 with total area of office space measuring 1316 square feet and 1243.5 square feet respectively on 5th Floor in the complex Unicity Business Park on or before 30.06.2010. On 21.04.2011, opposite party no.4 retired from the partnership firm along with other 3 other partners namely Sumit Garg, Hemraj Garg and Pardeep Garg, vide supplementary partnership deed cum admission cum retirement deed dated 21.04.2011, whereby, all retiring partners were released from all actions, proceedings and from all causes, covenants, agreements matters or things. Opposite party no.4 is not involved or connected with the affairs of the reconstituted partnership firm i.e OP No. 1 since retirement. The complainants themselves admitted in their complaint that a new offer was made to them to accept the another units and the said offer was accepted by them and the complainants entered into a new agreement (Annexure C-5) with the reconstituted partnership firm on 14.07.2015 whereby the parties to the said agreement mutually agreed to replace the earlier allotted unit no. 503 and unit no. 504 with unit No. 508 and unit no. 509 respectively. Opposite party no.4 was not a partner of opposite party no.1 in the new agreement, as opposite party no.4 has already retired in April, 2011. The effect of novation, rescission and alteration of contract is provided in Section 62 of Indian Contract Act, 1872 which says that if the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract, need not be performed. Opposite party no.4 is discharged from the liability to perform the old agreements dated 30.03.2009 in view of sub-section 2 of Section 32 of The Indian Partnership Act as new agreement dated 14.07.2015 was executed between the complainants and newly constituted firm. Opposite party no.4 is nor signatory to any of the agreements neither receiver of any consideration of the agreements before his retirement. The consideration was received by the then partnership firm. Rest of the averments made by the complainants in their complaint were denied by the opposite parties.
6.           In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in written reply of the opposite parties.
7.           The contesting parties led evidence in support of their case and also filed written arguments.
8.           We have heard the contesting parties and have gone through the evidence and record of this case, including the written arguments, very carefully.
9.            The following questions fall for determination before this Commission, in this complaint:-
   1. Whether the complainants fall within the definition of consumer?
   2. Whether possession of the units No.508 and 509  has been actually delivered to the complainants or not?
   3. Whether the complaint is within limitation?
   4. Whether opposite parties no.3 and  4 are liable in the matter or not?
   5. Whether the complainants are liable to make any remaining amount towards the units No.508 and 509 and if yes, to what extent?

10.           First coming to the question, as to whether, the complainants fall within the definition of consumer?. Though, counsel for the opposite  parties vehemently contended that the complainants are not ‘consumers’ as they have booked two ‘commercial units, it may be stated here that the complainants in para no.7 of their complaint have specifically averred that they are running their office on rent and as such for  better future, they have purchased the said units with a view to open their own office, to settle themselves i.e. to earn their livelihood by way of self employment and that the said units were never purchased by them for any commercial purposes. It is significant to mention here that a similar objection has already been dealt with by the Hon’ble National Commission in  L.K. VASHISHT & ANR. Versus M/S. LANDMARK APARTMENT PVT. LTD. FIRST APPEAL NO. 815 OF 2018, decided on 29 Jul 2019, wherein while brushing aside the similar objection taken by the builder, it was held as under:-

“…….10.     At the outset, we address to the issue as to whether the Complainants fall within the Ambit of the definition of ‘Consumer’ as defined under Section 2(i)(d) of the Act.

11.     Learned Counsel appearing for the Developer vehemently contended that the Complainants were not ‘Consumers’ as they have booked ‘Commercial Space’ in the IT Park and that there was no plea in the Complaint that it is for their livelihood. He further submitted that the Complainants already received an amount of ₹57,70,050/- towards assured return in both the Complaints and that the plea that this Commercial Space was purchased for their own livelihood was raised by the Complainants for the very first time in their Evidence Affidavit without filing any  documentary proof thereof and that the IT Park today is complete and the  competent authority has also issued part Occupation Certificate and hence seeking refund with interest at this juncture,  is not justified. He drew our attention to Clause 11 in the said MOU, which is reproduced as here under:

“11. That the First Party will reimburse 2.2 times of the entire principal amount in case of non completion of project along with bank interest of 18% annually.”

12.     It is the case of the Developer that there was no definite time frame given to construct the project and as it was an assured  return project the benefits of which were already availed by the Complainants together with the fact that the project today is complete, question of refund of the principal amount with interest does not arise.

13.     A brief perusal of the Affidavit of Evidence filed by the Complainants before the State Commission establishes that the Complainants wanted to use the said space for opening an office for their livelihood by employing themselves. This Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, has held that when a plea is raised by the Developer/ Developer that the Complainant is not a Consumer as defined under Section 2 (i)(d) of the Act as the space was purchased for commercial purpose or that more than two shops / flats have been purchased, it has been held by this Commission that the onus shifts to the Developers / Developer to establish that the Complainant was dealing in real estate i.e. in purchase and sale of shops / flats. In the instant case the Developer did not discharge its onus.

14.     Be that as it may, this Commission in its order dated 23.01.2018 in First Appeals No.  1260 to 1262 of 2016 (M/s. Landmark Apartment Pvt. Ltd. Vs. Ms. Parnita Garewal), while dealing with the same point of law, as to whether the Complainants were Consumers when they have purchased commercial space in the same project floated by the same developer, has held that the Complainants were Consumers as defined under Section 2 (i)(d) of the Act and that the Agreement does not anywhere specify that the space is meant  for only IT Park enabled services. Even in the instant case, neither the Application Form nor the MOU states that the space had to be used only for an IT related purposes.

15.     It is pertinent to mention that the Hon’ble Supreme Court in its order dated 16.04.2018 in SLP No. 9147 of 2018 ((M/s. Landmark Apartment Pvt. Ltd. Vs. Krishna Prakash), has dismissed the SLP preferred by the Developer against the orders passed in the aforenoted First Appeals and therefore the finding that the Complainants who have purchased Commercial Space in the said IT Park fall within the definition and Ambit of Section 2 (i)(d) of the Act, has attained finality….”

11.           Now coming to the liability of the opposite parties, it may be stated here that the Firm -M/s Unicity Projects Pvt. Ltd. came into existence on 12.06.2008  by way of Partnership Deed Annexure OP-4/1 with following six partners:-

1. Sushil Bindal
2. Jeewan Bansal
3. Sumit Garg
4. Hem Raj Garg
5. Naveen Bansal
6. Pardeep Garg

12.           The said partnership deed was dissolved on 01.04.2011 by way of “Supplementary Partnership Deed Cum Admission Cum Retirement Deed”, Annexure OP-4/2. Sh.Pardeep Garg and Sh.Sushil Kumar Bindal had retired and discontinued from the said Firm-(UNICITY Projects Pvt. Ltd.). It is specifically mentioned in para nos. 8 to 10 as under:-

“…8.The Retiring Partners hereby releases the Continuing Partners and the Continuing Partners hereby releases the Retiring Partners from and against all actions, proceedings, claims and demands in relation to the said Partnership and from all causes, covenants, agreements, matters or things in the said hereinbefore in part recited Deed of Partnership contained but without prejudice to any of the rights, claims or remedies of the said several Releasing Partners under any of the provisions and stipulations hereinafter contained.

9.In further pursuance of the said Agreement and in consideration of the full and final settlement arrived at between the Continuing Partners and the Retiring Partners and all the covenants, declarations and agreements on the part of the continuing Partners hereinafter contained the Retiring Partners as beneficial owners hereby assign and release unto the Continuing partners absolutely and all their shares right, title and interest, profits, clalm and demand in the said business of the said Partnership firm and the assets thereof namely land, building and plant and machinery including the goodwill, and any permit licences or quota rights, if any. It has also been unanimously agreed that after the retiring partners shall not have any right or interest therein.

10. The Continuing Partners hereby covenant with the Retiring Partners that the Continuing Partners shall take over with effect from 01.04.2011 all the liabilities of the firm and shall pay satisfy and discharge or so cause to be done all the debts, liabilities and other obligations of the partnership and further the Continuing Partner will from time to time hereafter effectually indemnify and keep indemnified the retiring Partners, their heirs, executors, administrators, representatives, estates liabilities and debts other than those which are payable or to be borne by them personally and from all costs, charges and expenses proceedings, claims and demands in respect thereof for all purposes and in all respects…”

13.           Thus, it is very much clear that Sh.Pardeep Garg and Sh. Sushil Kumar Bindal have retired w.e.f. 01.04.2011 as it is specifically mentioned in the said Retirement deed, Annexure OP-4/2 that the Retiring Partners hereby releases the Continuing Partners and the Continuing Partners hereby releases the Retiring Partners from and against all actions, proceedings, claims and demands in relation to the said retirement deed. This fact is admitted by counsel for opposite parties no.1 and 2 and has categorically stated during the course of arguments that they (Sh.Pardeep Garg and Sh.Sushil Kumar Bindal) have no concern whatsoever with the business of the Firm-(UNICITY Projects Pvt. Ltd.) after 01.04.2011.
14.           In this case, the initial allotment letter was issued in favour of the complainants on 29.10.2008 regarding unit no.503 (1302 square feet) and 504 (1286.5 square feet), on 5^th floor.  Subsequently by mutual consent of the parties, new allotment and agreement came into existence, by way of novation of contract, on 14.07.2015 (Annexure C-5) vide which the complainants were relocated to property bearing no.509 (2098 square feet) and 508 (916 square feet) in the said project. It is specifically mentioned in clause 6 of the agreement dated 14.07.2015, Annexure C-5 that second party after signing this agreement understands that there shall be no claim/rights, ownership of units no.503 and 504 with effect from 14.07.2015 and first party Unicity Project shall have full rights to sell, mortgage  and lease the above-said units to the third party.  It is therefore proved that in the case in hand, by way of novation, new agreement dated 14.07.2015, Annexure C-5 was executed between the new firm-(Unicity Project Developers) and the complainants. Thus, the complainants had accepted novation of the contract. In this view of the matter, old partners are absolutely not liable who retired about 4 years ago. Our this view  has been fortified by the judgment of the Hon’ble Madras High  Court titled as Vinaitheethal Achi v. Chidambaram Chettiar and others (Madras) : Law Finder Doc Id # 318744 wherein, it was held as under:-

“……We have, therefore no doubt in holding that the new firm had agreed by way of novation to assume the liability for the existing debt of the old firm and the plaintiff had also agreed to accept the new firm as her debtor and that therefore, the defendants were also personally liable for payment of the suit amount. In this connection, we may also refer to the decision in Meenakshi Achi v. Subramaniam Chettiar, 69 Mad LW 704 : AIR 1957 Madras 8, wherein a Division Bench of this court had held that if the new firm had assumed liability to pay the debt and the creditor had agreed to accept the new firm as his debtor to discharge his old partnership firm from its liability, the partners of the new firm would be liable to pay the creditor. It may be mentioned that the firm continued to exist even after the death of the original partners.………”

15.           Thus, by way of novation, first agreements dated 30.03.2009, in respect of units no.503 and 504 have been rescinded and new contract/ agreement dated 14.07.2015, Annexure C-5, with regard to units no.508 and 509 came into existence thereby relinquishing all claims, rights etc. regarding previous units.  However, as stated above, opposite party no.4-Sushil  Kumar Bindal had retired on 01.04.2011. He has not signed  any document in this case. In this view of the matter, he is not liable for any acts of firm done by UNICITY Project Developers  or its continuing partners, after his retirement. Therefore, this complaint against opposite party no.4-Sushil Bindal (Sushil Kumar Bindal) is dismissed.
16.           As far as liability of opposite party no.3-Sumit Garg is concerned, it may be stated here that admittedly opposite party no.3 had died during pendency of this complaint on 23.02.2024, yet, the complainants have not impleaded his legal heirs in this complaint as necessary parties. Vide order dated 16.04.2024, having been passed by this Commission, this complaint against opposite party no.3 has already been dismissed as abated. Under these circumstances, this complaint against opposite party no.3 is dismissed with no order as to costs. 
17.           Now coming to the issue of delivery of possession of unit Nos.508 and 509, it has been specifically averred in the reply by opposite parties no.1 and 2 that possession of the units no.508 and 509 in question was delivered to the complainants orally in the month of April 2017 and that they have obtained physical possession of the said units, respectively. This fact has been has been denied by the complainants. As per Clause 4 of the agreement dated 14.07.2015, Annexure C-5, opposite parties no.1 and 2 committed to deliver possession of relocated units no.508 and 509 within a period of 6 months from the date of execution of the said agreement i.e. latest by 14.01.2016. There is no document on the record to establish that possession of the said units No.508 and 509  has been delivered to the complainants by way of any oral agreement. Even occupation and completion certificates have not been placed on record to prove that the units in question were complete in all respects, by April 2017.

                   Though in order to wriggle out from the situation, counsel for opposite parties no.1 and 2 have placed reliance on registered sale deeds of other buyers of the project in question, Annexures R-6 to  R-17 to prove that the said buyers have taken over possession of their respective units and are living in the said project. However, to our mind, if some other buyers have taken over possession of the units in the said project and have got sale deeds executed, it is of no help to opposite parties no.1 and 2, and it is not relevant for the purpose of disposal of this complaint. 

                   It is significant to mention here that once there is no evidence on record to prove that possession of units no.508 and 509 has ever been delivered to the complainants and at the same time, the complainants have also denied the same, the onus then shifts upon  opposite parties no.1 and 2 to prove the same, but they miserably failed to do so. Under these circumstances, this Commission is of the view that possession of the units no.508 and 509 has not been delivered to the complainants till date. By not offering and delivering possession of the units no.508 and 509 by the promised date i.e. 14.01.2016 or even till date, opposite parties no.1 and 2 are deficient in providing service and guilty of adoption of unfair trade practice. The complainants are therefore held entitled to get possession of the units no.508 and 509 alongwith compensation for the period of delay in delivery of possession thereof i.e. from 14.01.2016 onwards, over and above compensation for mental agony and harassment suffered by them for non delivery of possession of their units, for such an inordinate delay.  

18.           The next question that falls for consideration is, as to whether the complainants are liable to make any remaining amount towards the units in question and if yes, to what extent? It may be stated here that as per  clauses 2 and 3 of the agreement dated 14.07.2015, Annexure C-5 in respect of the units no.508 and 509, it has been agreed to between the parties as under:-

“……2. That the Second Party shall pay for central air-conditioning (AHU), Elec backup charges, IFMS in the unit number 509 & 508 as mentioned in the terms and conditions with Anx.-1. All other charges apart from BSP has paid by Second Party as per previous agreement.

3. With the above-mentioned adjustments, Second Party does not have any dues against the unit No 509 and 508, and the same is allotted to Second Party via this agreements and subsequent registration...….”

19.           Perusal of afore-extracted clauses make it very clear that over and above the basic sale price of units no.508 and 509, the complainants were also liable to make payment for central air-conditioning (AHU), Elec. backup charges, IFMS including all other charges as per previous agreements. We have perused the old agreements dated 30.03.2009 and found that the complainants had already paid the entire sale consideration except Rs.1 lac for car parking and Rs.30000/- towards  air-condition charges per ton load in respect of unit no.503 (now 508) and Rs.2 lacs for car parking and Rs.30000/- towards  air-condition charges per ton load in respect of unit no.504 (now 509). Under these circumstances, it is held that the complainants are liable to make remaining  payment as under:-

1. Car  parkings= Total Rs.300000/- for both units no.508 and 509 Air-condition charges per ton load=Total Rs.60000/- for both units no.508 and 509; and
2. Elec. backup charges, IFMS against respective units no.508 and 509.

20.           Now the question arises, as to what compensation should be granted to the complainants in this case? It may be stated here that Consumer Protection Act has been made to safeguard the consumer rights. In the present case, failure of the opposite parties no.1 and 2 to deliver possession of the units No.508 and 509, for such an inordinate delay which is still continuing, amounts to deficiency in service. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil Appeal No. 11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon’ble Supreme Court of India has upheld the order of the Hon’ble National Commission awarding interest @9% p.a. for the period of delay in delivery of actual physical possession. Thereafter also, similar rate of interest i.e. 9% p.a. was granted by the Hon’ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285- 2330 of 2019, decided on 26 February, 2019, by making reference to the earlier order passed by it in Himanshu Arora’s case (supra). Furthermore, in Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered. In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered. Recently also, the Hon’ble National Commission in Anshuman Sinha & Anr. Versus M/s. Jai Prakash Associates Ltd., Consumer Case No. 1245 of 2016, decided on 01 February 2024 has awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered. Relevant part of the  said order is reproduced hereunder:-

“…..Resultantly, the complaint is partly allowed in terms aforesaid to the extent that the opposite party shall pay delay compensation @ 9% p.a. on the total amount paid by the complainant with effect from 05.09.2011, that is expected date of delivery till the date of offer of possession, that is 24.12.2015 within a period of three months…”

Under these circumstances, in the present case also, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them in respect of the units in question from the due date onwards till possession of the same is actually delivered to them, that will meet the ends of justice.

21.           Since it has been held above by this Commission that possession of the relocated units  has not been delivered till date, as such, there is a continuing cause of action in favour of the complainants to file this complaint, in view of ratio of law laid down by the Hon’ble Supreme Court 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 actual physical possession of the residential units/plots is not delivered, there is a continuing cause of action in favour of the allottee/buyer. As such objection taken by the opposite parties no.1 and 2 in this regard stands rejected.
22.           For the reasons recorded above, this complaint is partly accepted with costs against opposite parties no.1 and 2 and they are jointly and severally directed as under:-
    1. To hand over physical possession of the relocated units in question i.e. units no.508 and 509 in the said project,  complete in all respects, after obtaining occupation and completion certificates from the competent Authorities, within a period of two months (02 months) from the date of receipt of a certified copy of this order, on receipt of car  parking charges to the tune of Rs.3,00,000/- (for both units); Air-condition charges to the tune of Rs.60,000/- (for both units) and also  Elec. backup charges, IFMS against respective units no.508 and 509 from the complainants, as contained in the agreement(s).
    2. To pay to the complainants, compensation by way of interest @9% p.a. on the entire received sale consideration in respect of the units in question, from due date of possession i.e. from 14.01.2016 till 30.04.2024, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount of compensation from 14.01.2016 till 30.04.2024 aforesaid shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainants.
    3. To pay to the complainants, compensation by way of  interest @9% p.a. on the entire received sale consideration, w.e.f. 01.05.2024, onwards (per month), by the 10^th of the following month till compliance of directions given in sub-para no.(i) above. 
    4. To pay to the complainants, compensation to the tune of Rs.75,000/- for causing them mental agony & harassment, deficiency in providing service and adoption of unfair trade practice; and also cost of litigation to the tune of Rs.35,000/- 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 amounts shall carry interest @9% p.a. from the date of  default till realization.

23.           Pending applications, if any stands disposed of accordingly. 
24.           Certified copies of this order be sent to the parties, free of charge, forthwith.
25.           The file be consigned to Record Room, after completion.

Pronounced.

30.04.2024

 Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

Sd/-

(RAJESH K. ARYA)

MEMBER

Rg.