Chandigarh

StateCommission

CC/720/2017

Mohinder Pal Ahuja - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Rajesh Girdhar & Abhishek Bhateja, Adv.

16 Apr 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	720 of 2017
Date of Institution	:	03.10.2017
Date of Decision	:	16.04.2018

 

1. Mr.Mohinder Pal Ahuja son of Sh.Hans Raj Ahuja, resident of House no.938, Sector 70, Mohali.
2. Mr.Satinder Pal Ahuja son of Sh.Hans Raj Ahuja, resident of House no.938, Sector 70, Mohali.

…… Complainants

V e r s u s

1. Unitech Limited, through its Managing Director, Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
2. Unitech Limited, through its Managing Director, Office at 6, Community Centre, Saket, New Delhi-110017.
3. M/s Alice Developers Private Limited, Registered Office at 6, Community Centre, Saket, New Delhi, through its Managing Director. 

…. Opposite parties

 

Complaint under Section 17 of the Consumer Protection Act, 1986

 

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:-      Sh.Abhishek Bhateja, Advocate for the     complainants.

Mrs.Vertika H. Singh, Advocate for opposite parties No.1 and 2.

Ms.Kshitija Mittal, Advocate for opposite party no.3.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

               

                The complainants are real brothers. They have filed this complaint, by alleging that believing glossy advertisements, made by the opposite parties, regarding launching of their residential project, under the name and style ‘UNIHOMES, situated in Mega Township, Uniworld City, Sector 107, Mohali, Punjab, they purchased a flat bearing no.0012 (3 bedroom), Block B, Ground Floor, measuring 1077 square feet, (in short the unit). As per brochure issued, venture launched was projected to be masterpiece of urban living. Total sale consideration of the said unit was fixed at Rs.29,51,886/-, which included Rs.26,90,259/- towards basic sale price; Rs.1,50,000/- towards preferential location charges and Rs.1,11,627/- towards External Development Charges (EDC). The complainants opted for construction linked payment plan. Buyer’s Agreement was executed between the parties on 13.03.2010.

2.         It was averred that, as per Clause 4 (a) (i) of the Agreement, after construction, possession of the unit was agreed to be given within 36 months, from the date of signing of the same. As per condition no.4.b. of the Agreement, it was incumbent upon the opposite parties, to give notice to the complainants, in case of delay in handing over possession of the unit, beyond the period of 36 months, subject to force majeure circumstances. It was further provided in condition no.4.c. in the Agreement that penalty @Rs.5/- per square feet, per month of the saleable area, for the period of delay in delivery of possession of the unit shall be paid by the opposite parties, to the complainants. It was further stated that as per the Agreement, end date to hand over possession  of the unit was 12.03.2013.
3.         It is necessary to mention here that the complainants raised loan amount of Rs.24 lacs, from the HDFC, on 23.02.2010, to make payment towards price of the said unit. The said amount was paid by the HDFC to the opposite parties, as per terms and conditions of the tripartite agreement Annexure C-6. The complainants, regularly, paid EMIs to repay the said loan amount. When delivery of possession of the unit, in question, was not offered by the stipulated date, the complainants visited the project site, and were shocked to see that construction was going on at very slow pace. Penalty amount,  for the period of delay, in handing over possession of the unit, as promised vide Clause 4 (c) of the agreement, was also not paid by the opposite parties.  Visit of the complainants, to the project site, in the year 2014, revealed that construction work was stopped. Thereafter, the complainants visited the office of the opposite parties, many a times, and took up matter with regard to non-existence of basic amenities at the site; incomplete construction; non-offering possession of the unit, in question, etc. however, failed to get any positive response. The opposite parties continued to give false assurances, without any justification. It was further stated that construction of the unit, was not complete, even when this complaint was filed. It was averred that the aforesaid acts of the opposite parties, amounted to deficiency in providing service and also adoption of unfair trade practice.  Hence, this complaint, seeking issuance of directions to the opposite parties to refund the amount paid, alongwith interest @18% p.a., alongwith compensation, litigation expenses etc.  
4.         Opposite parties no.1 and 2, filed their joint written version, wherein, an attempt has been made to wash of their hands, by stating that Buyer’s Agreement was signed between opposite party no.3 and the complainants. As per Development Agreement dated 01.12.2008 opposite party no.3 was to construct the units and hand over possession thereof, to the purchasers. As opposite party no.3 has failed to do so, as such, no liability can be imposed upon opposite parties no.1 and 2, which were only to receive payments from the allottees, on behalf of opposite party no.3. Territorial jurisdiction of this Commission was challenged by stating that Buyer’s Agreement was signed at New Delhi and also all the payments were received by Gurgaon Office of the opposite parties. Receipts were issued by opposite parties no.1 and 2 from Regional Office Chandigarh, on behalf of opposite party no.3. It was further stated that all demands to make payment were raised by opposite party no.3, which was collected and deposited in a designated account of the developer i.e. opposite party no.3 and the unit, in question, is also situated at Mohali. Pecuniary jurisdiction of this Commission was also disputed. It was further stated that the complaint filed is beyond limitation. It was further stated that the unit, in question, was purchased for future gain, as such, the complainants being investors, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.
5.         On merits, it was admitted that the complainants had purchased the residential unit, in question, in the manner, referred to above. Payments made by the complainants towards price of the unit, are also not disputed. Fact qua price of the unit, as mentioned in the complaint was also not disputed. It was stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was further stated that, in fact, the complainants should have filed a civil suit for recovery of the amount deposited.
6.         It was not disputed that as per condition no. 4.a.(i) of the Agreement, possession of the fully developed unit, was to be delivered to the complainants within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions. The said period was extendable and till such time, the sale deed is executed, the developer was to remain owner of the property, in question. It was further stated that it was the opposite party no.3, which was to construct the units and deliver possession of the same, as such, no liability can be fastened upon opposite parties no.1 and 2, as they were only the confirming parties. It was further stated that opposite parties no.1 and 2 had no liability to make refund of the amount deposited. It was further stated that vide Development Buyer Agreement dated 01.12.2008, opposite party no.3 was assigned development rights, with regard to more than 33.2438 acres of land, in which unit allotted to the complainants is situated. Opposite party no.3 was also authorized to use Unitech Trade Mark and Corporate Logo, for various purposes, such as promotional, marketing, advertisements etc. It was stated that seeking refund of the amount paid amounted to cancellation of agreement, and, in that event, forfeiture clause contained therein, will be applicable. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
7.         Opposite party no.3, in its written statement took up almost the same objections, as have been taken by opposite parties no.1 and 2, in their joint written statement. However, it was additionally stated that delay, if any, took place on account of force majeure circumstances, faced by opposite party no.3. It was pleaded that delay caused is solely attributable, to the Govt. Department(s), which have not been impleaded as a party to this complaint. It was averred that for any delay, stipulated penalty has been provided in the Agreement, which safeguarded rights of the complainants. It was averred that construction work of the unit is complete and opposite party no.3 had already applied for completion certificate vide letter dated 03.02.2016. It was stated that opposite party no.3 is making efforts to hand over possession of the unit, to the complainants. It was pleaded that the complainants are defaulters and cannot seek any relief, under the Agreement.
8.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint, and repudiated those, contained in written version of the opposite parties.
9.         The contesting parties led evidence in support of their case and raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
10.         Before making any reference to the merits of the case, we will like to decide an objection raised by opposite parties no.1 and 2 that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  Relevant part of the said order reads thus:-

“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. ”

                In the present case also, total value of the unit, in question, i.e. Rs.29,51,886/-, plus compensation claimed by way of interest @18% p.a. on the deposited amount of Rs.28,03,895/-and also Rs.10 lacs, for mental agony and physical harassment, if taken into consideration, in no way, exceeds Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection taken by opposite parties no.1 and 2, that this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.

11.         The next question, that falls for consideration, is, as to whether, the complainants are speculators, and that they have purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act., as alleged by the opposite parties. It may be stated here that there is nothing, on record to show that the complainants are property dealers and are indulged in sale and purchase of property, on regular basis. In para no.3 of the complaint, supported by their affidavit, it has been specifically stated by the complainants that the unit, in question was purchased by them, for their residential purpose. 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 Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties in their written reply, therefore, being devoid of merit, is rejected.  
12.         The next question, that falls for consideration, is, as to whether, this Commission has got 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 contents of the Buyer’s Agreement, that it has specifically been stated that the Company i.e. Unitech is a Public Limited, having its Marketing Office at Unitech Limited, SCO 189-90-91, Sector 17C, Chandigarh. Furthermore, it is also evident from copies of cheques, placed on record (at pages 80 to 90 of the file), that substantial amount towards price of the said unit was received by opposite parties no.1 and 2, at their Regional Office at SCO No.189-191, Sector 17-C, Chandigarh. If that is so, it can safely be said that the Marketing Office of the Company at Chandigarh, was actively playing a significant role, in respect of the transaction in question, meaning thereby that it was actually carrying on business for gains, from Chandigarh. Under these circumstances, it can very well be said that this Commission, at Chandigarh, has territorial jurisdiction, to entertain and decide this complaint, in view of Section 17 (2) (a) (b) and (c) of the Act.

                Not only as above, since it has been proved on record that Marketing office of the Company is located at Chandigarh;  the project, in question, was marketed from Chandigarh;  in that case also, this Commission has territorial jurisdiction to entertain and decide this complaint, in view of law laid down by the Hon’ble Supreme Court of India in State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839, in which it was held that the Court(s), in whose Jurisdiction, products/goods are marketed, will have the territorial Jurisdiction to entertain and decide a complaint. Not only as above, similar findings were given by the National Commission, in a case titled as Parsvnath Developers and anr. Vs. Som Nath Sharma and 2 ors., First Appeal No.1613 of 2016, decided on 21.03.2017. Relevant contents of the said order read thus:-

“Regarding the question of territorial jurisdiction, the some part of cause of action accrues in Delhi as the agreement was signed at New Delhi.  The  payment  was received at Panchkula in the office of OPs 1 and 2.  Similar issue was decided by this Commission in the case of Ravinder Kumar Bajaj vs. Parsvnath Developers Pvt. Ltd. & Ors., first appeal No. 515 of 2016 decided on 23.08.2016 qua same very builder.  It was held that “officers of opposite parties no.1 and 2 sitting in Branch Office at Chandigarh were actively participating in marketing and propagating the project, in question.  They were dealing with the complainants throughout, by receiving their letters qua progress at the spot and also accepted payment made through cheques.  In view of above, objection raised in this regard, stands rejected.”

 

                In view of above, objection taken by the opposite parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

13.         An objection was also raised by the opposite parties that the dispute being related to contractual nature, the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainants hired the services of the opposite parties, for purchasing the unit, in the manner, referred to above. According to condition no.4.a.(i) of the Agreement, physical possession of the unit, was to be delivered by the opposite parties, within a period of 36 months, from the date of execution of the same (Agreement) i.e. latest by 12.03.2013 alongwith all basic amenities as mentioned in Article 2.a.(iii) of the Agreement. By not doing so, the opposite parties have breached the terms and conditions of the said agreement, leading to deficiency in providing service and adoption of unfair trade practice. 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). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by them, as they fall, within the definition of consumer. In this view of the matter, objection taken by the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

                The above objection taken by the opposite parties is also bereft of merit, in view of judgment passed by the Hon’ble National Commission, titled as M/s. Karwa Developers & 3 Ors. Vs. Shree Vinayak Co-Operative Housing Society Ltd. & 3 Ors., First Appeal No. 980 of 2016,  decided on 3^rd  March, 2017, wherein, a similar plea of the builder was negated, while holding as under:-

“We also do not find any substance in the plea taken by the appellant that under clause 14(a) of the development agreement, the complainant was required to file a civil suit under the Specific Relief Act only, because they were asking for monetary relief.  The State Commission rightly stated that the relief sought in the complaint were on account of deficiencies committed by the OP Developers, vis-à-vis, the society.  Since there is a specific clause in the agreement for giving the possession of the flat within specific time frame and penalty has been provided if the developers failed to develop the same, the society was well within its rights to file consumer complaint against the OP builder.”

 

14.         It is not in dispute that the opposite parties have failed to deliver possession of the unit, in question, within the stipulated period or even as on today. The complainants have sought refund of the amount paid, alongwith interest, compensation etc. It is to be analyzed as to whether, in view of facts noted above; pleadings on record and arguments raised, it is open to the complainants, to claim above said relief or not.

                It is not in dispute that the complainants purchased the unit, in question, vide Agreement dated 13.03.2010. Constructed unit was sold in favour of the complainants, for an amount of Rs.29,51,886/-, which includes basic sale price, external development charges etc. In all, the complainants have paid an amount of Rs.28,03,895/-, towards price of the said unit. As per condition no. 4.a.(i) of the Agreement, possession of the fully constructed unit, in a developed project, was to be delivered to the complainants within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions i.e. on or before 12.03.2013. Before delivery of possession, as per condition no.4.b. of the Agreement, it was incumbent upon the opposite parties, to give notice to the complainants, in case of delay in handing over possession of the unit, beyond the period of 36 months, subject to force majeure circumstances. It was further provided in condition no.4.c. in the Agreement that penalty @Rs.5/- per square feet, per month of the saleable area, for the period of delay in delivery of possession of the flat shall be paid by the opposite parties, to the complainants. The due date of offer of possession of the unit i.e. 12.03.2013 already stood expired. Now it is April 2018.

                Contention of Counsel for the complainants that construction at the spot is not complete needs acceptance. By the date, when arguments were addressed before us, possession has not been offered to the complainants. It is not a case of the opposite parties that possession of the unit was ready to be delivered by the stipulated date, but the complainants have refused to come forward to accept the same (possession). Rather, at the time of arguments, Counsel for the opposite parties failed to give any positive date/time, as to when, possession of the constructed unit will be given. It is only said that opposite party no.3 is making best efforts to deliver possession, as it has already applied for issuance of completion certificate vide letter dated 03.02.2016. Qua this very project, in a large number of cases, it has been found as a matter of fact that construction has come to stand still. As stated above, even at the time of arguments, no commitment was made to deliver possession of the unit, in near future.

                Even otherwise, not even a single convincing document has been placed on record, by the opposite parties to prove that the unit, in question, is habitable or that the development at the project is complete in all respects. It is well settled law that the onus to prove that the project has been completed and the area/site, in question, is fully developed, is on the builder/the opposite parties. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, it is very strange that not even a single document has been placed on record, by the opposite parties, in respect of the flat, in question, to prove that the construction is complete and they are actually ready for offer and delivery of possession. In case, all the development activities had been undertaken and construction of the flats is complete at the project site, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development and construction activities, had been undertaken and completed at the site or not, but they failed to do so. At the same time, the opposite parties were also required to produce on record, a copy of the occupation and partial/final Completion Certificates (if obtained), having been issued by the Competent Authorities, which could be said to be best evidence, to prove their case, but they miserably failed to do that also. Mere placing on record an application dated 03.02.2016, allegedly sent to the Competent Authorities, seeking completion certificate in respect of the project, in question, is of no help to the opposite parties.

                Under these circumstances, it can be said that there is a material violation on the part of the opposite parties. At the same time, it is also a settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

                In the present case, as stated above, possession of the unit, has not even been offered, what to speak of delay in offering thereof. Under these circumstances, it is held that since there was a material violation on the part of the opposite parties, in not offering and handing over possession of the unit by the stipulated date or by the time, this complaint was filed, the complainants are, thus, entitled to get refund of amount actually deposited by them. In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

                Furthermore, plea taken by the opposite party no.3 in its written statement and also raised at the time of arguments, to the effect that delay aforesaid, in handing over possession of the units, is solely attributable to the Govt. Department(s), as they took a long time to grant approval for supply of electricity to the project, has no legs to stand. To substantiate its stand, the Company was required to place on record cogent and convincing evidence on record, to convince this Commission that despite the fact that every step was taken at its end, but the said Department(s) delayed the matter, unnecessarily leading to delay in completing the project. Had this been actually the case of the Company, they would have definitely taken up the matter with the Competent Authorities, by sending letters followed by reminders, to grant approval with regard to provision of electricity to the project or would have lodged complaint against them, at appropriate platform. However, no such, documents are on record.

                As such, it can very well be said that such a plea has been taken by the opposite parties, just with a view to evade their liability. Under these circumstances, no help, therefore, can be drawn by the opposite parties, from Clause 8 (b) of the Agreement, relating to force majeure circumstances, as far as the present case is concerned. The complainants are certainly entitled to get refund of the amount deposited by them, towards price of the said unit, as held above.

15.         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.28,03,895/- 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. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest (compounded quarterly @18% per annum) as per Article 2.c. of the Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 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 @15% compounded quarterly, (less than the rate of interest charged by the opposite parties, in case of delayed payment i.e. 18% compounded quarterly, as per Article 2.c. of the Agreement), till realization. 

                Since it has been held above that the complainants are entitled to refund of the amount deposited alongwith interest, as such, the plea taken by opposite party no.3 that it is ready to pay delayed compensation @Rs.5/- per square feet, per month, of the saleable area of the unit, in question, for the period of delay cannot be taken into consideration. Had possession of the unit, in question, been sought by the complainants, the matter would have been different, and in those circumstances, necessary directions would have been passed, as per law.   

                At the same time, it is also held that because the opposite parties were themselves, at fault, in not completing the construction and offering possession of the unit, in question, by the stipulated date or even as on today, as such, their plea that forfeiture clause will be applicable, in the present case, is devoid of merit, and, as such, rejected. Had possession of the unit, in question, been offered by the stipulated date and had the complainants refused to take the same, on account of some personal or financial excuse, the matter would have been different and in that event, necessary directions with regard to forfeiture would have been passed by this Commission, as per law,

16.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not.  It may be stated here that since it is an admitted case that offer of possession of the unit, in question, could not be made by the stipulated date or even till date for want of completion of construction, and on the other hand, amount deposited was also not refunded to the complainants alongwith interest, as such, there is continuing cause of action, in her 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). Under these circumstances, it is held that the complaint is not at all barred by limitation. The submission of Counsel for the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
17.         As far as the liability of opposite parties no.1 and 2, is concerned, it may be stated here that once it has been proved on record that the Company i.e. Unitech Limited was a necessary party to the Agreements aforesaid; it also marketed the project, in question; and had also received substantial amount, from the complainants, towards the said unit, as such, they (opposite parties no.1 and 2) are equally liable alongwith opposite party no.3/Alice Developers Private Limited, to refund the amount paid by them (complainants). The objection raised by opposite parties no.1 and 2 to the effect that they being facilitators or confirming parties, are not liable to refund the amount paid by the complainants, alongwith opposite party no.3, being devoid of merit, stands rejected.
18.         At the time of arguments, it was contended by Counsel for opposite parties no.1 to 3, 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, 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.

                In view of the above, stand taken by Counsel for the opposite parties, being devoid of merit stands rejected.

19.         No other point, was urged, by the contesting parties.
20.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties, jointly and severally, are directed as under: -

1.        To refund the amount of Rs.28,03,895/-, alongwith interest @15% compounded quarterly, from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3.        To pay cost of litigation, to the tune of Rs.33,000/- to the  complainants.

 

21.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18%, instead of 15%, compounded quarterly, from the respective dates of deposits onwards and interest @15% p.a. simple, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
22.         However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants). It is further made clear that, in case, the complainants have purchased the unit, in question, under subvention scheme, the amount so ordered to be refunded, shall be paid by the opposite parties (Unitech Limited and Alice Developers Pvt. Ltd.), after deducting/adjusting the amount paid by them, if any, towards Pre-EMI interest, to the Financial Institution/Bank concerned.
23.         Certified Copies of this order be sent to the parties, free of charge.
24.         The file be consigned to Record Room, after completion.

Pronounced.

16.04.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

Rg.