Chandigarh

StateCommission

CC/752/2016

Shivani Aggarwal - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Rajiv Goel, Adv.

14 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	752 of 2016
Date of Institution	:	02.11.2016
Date of Decision	:	14.02.2017

 

Shivani Aggarwal wife of Sh.Sandeep Aggarwal, resident of House No.742, Sector 11-B, Chandigarh.

…… Complainant

 

V e r s u s

1. Unitech Limited, Regd. Office 6, Community Center, Saket, New Delhi, through its Managing Director.
2. Unitech Limited (Uniworld City Mohali), Marketing Office at SCO No.189-90-91, Sector 17, Chandigarh, through its Authorized Officer.

…. 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.Rajiv Goel, Advocate for the         complainant.

Mrs.Vertika H. Singh, Advocate for opposite parties

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The facts in brief are that, allured by widely advertisements made by the opposite parties regarding salient features of their project, namely ASPEN Greens, Uniworld City, Sector 107, Mohali, Punjab, the complainant purchased a plot bearing no.0006, Tower-E, (P-300SQM) therein. Total price of the said plot was fixed at Rs.84,92,706/-. Buyer’s Agreement was executed between the parties, on 06.06.2011. As per Clause 4(a) of the Agreement, possession of the developed plot was agreed to be delivered within 18 months, from the date of signing of the above said Buyer’s Agreement i.e. on or before 05.12.2012. On demand raised from time to time, the complainant paid total amount of Rs.78,05,584/- towards price of the said plot. However, possession of the plot was not offered by the stipulated date or thereafter. Physical visits of the site reveal that development work has been stopped, without any reason. Despite numerous requests having been made to the opposite parties, they failed to do the needful, by offering possession of developed plot to the complainant. Number of requests made by the complainant, to the opposite parties, to apprise her about status of the project, did not yield any result. Legal notice dated 10.10.2016 served upon the opposite parties, seeking refund of the amount paid, alongwith interest and compensation,  also failed to get any response. It was averred that the aforesaid acts of the opposite parties amounted to indulgence into unfair trade practice and deficiency in providing service to the complainant.

2.         By stating as above, the instant complaint has been filed by the complainant with a prayer to issue directions to the opposite parties to handover possession of the plot, in question, complete in all respects; interest on the deposited amount for the period of delay; compensation for mental agony & physical harassment and cost of litigation.
3.         Upon notice, reply was filed by the opposite parties. Disputing territorial jurisdiction of this Commission, to entertain the complaint, it was stated that Buyer’s Agreement was executed at New Delhi; demands were raised from Gurgaon Office; receipts were also issued from the said office, and the Branch Office at Chandigarh, at no time did any act, which may give any cause of action to the complainant to invoke territorial jurisdiction of this Commission. Status of the complainant as consumer, was also disputed by stating that she had purchased the said unit for future gain, as such, she being investor, would not fall within definition of a consumer, as defined under Section 2 (1) (d) of the Act. Pecuniary Jurisdiction of this Commission was also disputed. At the time of arguments also Counsel for the opposite parties argued on pecuniary jurisdiction of this Commission, while placing reliance on the ratio of judgment of Larger Bench, passed by the National Consumer Disputes Redressal Commission, New Delhi (National Commission), titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016. It was also averred that in terms of Clause 8.b. of the Agreement, it was open to the opposite parties to ask for further extension of time to handover possession of the plot, on account of force majeure circumstances, under which development work could not be completed. It is stated that the complaint filed is barred by limitation.
4.         On merits, it is admitted that the complainant had purchased the plot, in question, from the opposite parties. Price of the said plot and the payments made by the complainant, in respect thereof, as mentioned in the complaint, is also not disputed. Execution of the Agreement aforesaid, between the parties, is also not disputed.  It is stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was also not disputed that as per Article 4.a.(i) of the Agreement, the  opposite parties were to hand over possession of a fully developed plot, to the  complainant within a period of 18 months, from the date of execution of the same (Agreement), subject to force majeure conditions. It is clarified that the opposite parties could not complete the construction/ development work and hand over possession of  the plot to the  complainant, as there was global meltdown/recession of the economy worldwide, resulting into financial hardships and also due to objection raised by the Punjab State Power Corporation Limited (PSPCL), a number of times, as such, electricity could not be made available at the site, by the opposite parties, due to which, rest of the construction/development work and providing of the basic amenities was delayed. It is stated that development work where the plot, in question is located, is being carried out, in full swing and the opposite parties are making sincere efforts to hand over possession of the plot, to the complainant at the earliest. It is averred that for any delay, stipulated penalty has been provided in the Agreement, which safeguarded rights of the complainant, in case, she is eligible for that. It was also stated that the opposite parties vide letter dated 03.02.2016, has applied to the Competent Authority, to issue partial completion certificate, in respect of the project, in question. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
5.         The parties led evidence in support of their case. 
6.         We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully.
7.         Before making any reference to the merits of the case, we will like to decide the objection raised by the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  It is necessary to mention here that, as per admitted facts, the complainant has sought possession of the plot, in question, total cost whereof, is Rs.84,92,706/-; interest @18% p.a. on the amount deposited to the tune of Rs.78,05,584/- for the period of delay; compensation to the tune of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation to the tune of Rs.70,000/-. At the time of arguments, it is argued by Counsel for the opposite parties that if the entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and in that event, it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra).  

                We are not going to agree with the submission raised. This Commission, in the case of  Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, by relying upon the ratio of judgment titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC), held that when determining pecuniary jurisdiction, in a complaint, component of interest claimed, is not to be added in the relief sought. In that case, it was recorded as under:-  

“In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/ Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

 

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

 

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

 

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

 

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

 

In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected. ”

       

                Thus, in the present case also, if interest is not added to the  entire claim raised i.e. price of unit; compensation for mental, agony and physical harassment; compensation for delayed period; and cost of litigation, it will remain below Rs.1 crore. In view of above, objection raised by Counsel for the opposite parties stands rejected.

8.         The contention of Counsel for the opposite parties that this Commission lacks territorial jurisdiction to entertain and decide the complaint, needs to be rejected. In the instant case, it has been candidly admitted by the opposite parties, that they have Marketing Office at Chandigarh i.e. at SCO No.189-90-91, Sector 17-C, Chandigarh. At the same time, perusal of document Annexure C-3, customer ledger pertaining to the account of the complainant, maintained by the opposite parties, reveals that the same has been issued by opposite party no.2 at Chandigarh. Furthermore, it is evident from the documents at pages 38 and 39 of the file, that substantial amount of Rs.51,21,784/- and Rs.10,05,584/- respectively, was received by Registered/Marketing Office of the opposite parties at SCO No.189-191, Sector 17-C, Chandigarh. Besides as above, when we look into the documents placed on record, by the opposite parties, relating to seeking permissions from Competent Authorities for the project, in question, it reveals that correspondence took place between the Registered Office of the opposite parties at Chandigarh and the Authorities concerned, for release of electricity connection and to complete other formalities, which are necessary to develop the project. On the basis of above facts, it is held that since a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by Counsel for the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected. 
9.         To defeat claim of the  complainant, another objection was raised by Counsel for the opposite parties, that the complainant is a speculator, as she has 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, she would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act.

                It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. On the other hand, the complainant, in paragraph no.7 of her complaint has specifically stated that the plot, in question, was purchased by her, for her residential purpose. Furthermore, still the complainant is seeking possession of the plot, in question. 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. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Counsel for the  opposite parties, being devoid of merit, is rejected.  

10.         Another objection was raised by Counsel for the  opposite parties that the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainant hired the services of the opposite parties, for purchasing the unit, in the manner, referred to above. According to Article 4.a.(i) of the  Agreement, the  opposite parties were liable to deliver physical possession of the developed plot, within a period of 18 months, from the date of execution of the same (Agreement) i.e. on or before 05.12.2012, alongwith all basic amenities as mentioned in Article 2.a.(ii) [at page 19 of the file) of the Agreement. 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 complainant has 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 her, as she falls fall within the definition of a consumer. In this view of the matter, the objection raised by Counsel for the  opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

11.         It is apparent on record that the opposite parties have failed to discharge their promise made vide Agreement dated 06.06.2011. Possession of the developed plot was to be delivered within 18 months, from the date of execution of the Agreement. More than 90% of amount towards price of the plot stood paid. At the time of arguments, Counsel for the opposite parties has failed to commit about the period within which, possession of the unit can even now be delivered. Even in the written reply, no definite time period has been given, within which, possession of the plot can be delivered in near future. It has only been stated that possession of the plot will be delivered at the earliest.

                In the written version, the opposite parties, frankly admitted that possession of the unit, in question, could not be offered to the  complainant, by the stipulated date, as they had failed to complete the construction and development work, on account of extreme financial hardship, due to recession in the market/global meltdown, and also on account of non-provision of electricity in the said project, by the Punjab State Power Corporation Limited (PSPCL). It is significant to note here that even partial completion certificate has not been obtained by the opposite parties, till date, what to speak of obtaining final completion certificate, which is mandatory, before delivery of possession of the plot. Admission made by the opposite parties, itself makes it clear that they have not obtained necessary approvals/sanctions from the PSPCL, as a result whereof, they were not provided with electricity, for the project in question. Still, the opposite parties are working on obtaining permissions, from the PSPCL/GMADA. Secondly, when the opposite parties, had already received more than 90% of the sale consideration, towards the plot(s), from the allottee(s), then it does not lie in their mouth, that they faced extreme financial hardship, due to recession in the market, as far as the project, in question, is concerned. It is not that the  opposite parties were, in the first instance, required to develop the project, by arranging funds out of their own sources, and, thereafter, the plots were to be sold to the allottees, on future payment basis. Had this been the case of the opposite parties, only in those circumstances, the plea with regard to facing extreme financial hardship would have been considered to be correct, by this Commission.

                Even otherwise, the said difficulty/ground i.e. recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the construction and development work at the site. A change in economic or market circumstances affecting the profitability of a contract or the circumstance, is not regarded as a force majeure condition. Neither any new legislation was enacted nor an existing rule, regulation or order was amended, stopping suspending or delaying the construction/development work of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. There is no allegation of any lockout or strike by the labour, at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite parties or the contractors engaged by them, at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God, which could have delayed the completion of construction/development work in the project, within the time stipulated in the Agreement. A similar question fell for determination before the Hon`ble National Consumer Disputes Redressal Commission, New Delhi, in a case titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  2015 (4) CPR 34. The National Commission, in that case, while rejecting the plea of the builder, held as under:-

“Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.

Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the  complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the  opposite parties or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word ‘slow down’ having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.”.

 

12.         The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. The opposite parties, therefore, cannot take shelter under Article 8.b. of the Agreement, for extension of period, for delivery of possession of the plot. By making a misleading statement, that  possession of the plot, in question, would be delivered within a period of 18 months, from the date of execution of the Agreement but on the other hand, by not abiding by the commitments made, the opposite parties were not only deficient, in rendering service, but also indulged into unfair trade practice.
13.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It may be stated here that since it is an admitted case that offer of possession of the plot, in question, could not be made till date for want of development work, as such, there is continuing cause of action, in favour of the complainant, 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.
14.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to delivery of possession of the plot purchased by her. As stated above, possession of the plot, in question, was to be delivered on or before 05.12.2012  i.e. with 18 months, from the date of execution of the Agreement. However, as stated above, it is an admitted fact that possession of the plot, in question, has not been offered, by the date of filing the instant complaint, or even till date, despite the fact that Rs.78,05,584/- out of total sale consideration of Rs.84,92,706/- has been paid by the complainant, for want of development and basic amenities at the site. At the time of arguments, this Commission asked Counsel for the opposite parties, as to within how much time, possession of the developed plot, is likely to be delivered to the complainant, however, she failed to make any commitment, on behalf of the opposite parties. Above fact shows that, still there is no development in the area, where plot, in question, is located. By making a misleading statement, that possession of the developed plot, will be delivered within the maximum period of 18 months from the date of Agreement i.e. on or before 05.12.2012, and not abiding by the commitment made by the opposite parties, they were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant is certainly entitled to delivery of physical possession of the plot, in question.

                In view of above, the opposite parties are also liable to pay compensation to the complainant, for causing mental agony, physical harassment and deficiency in providing service.

15.         What relief can be granted to a consumer, in case of delay, in offering possession of plot purchased, came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016, wherein dealing with similar issue, it was observed as under:-

“What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Hon’ble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Hon’ble National Commission, on 06.05.2016, wherein, it was argued by the project proponent that at the maximum, as provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:-

“Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including  Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015.  Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.”

Not only this, in another case, titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)     xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.”

Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice.”

                    Not only this, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice. Taking note of above said proposition of law, in the present case also, ends of justice would meet, if interest is granted for delayed period, to the complainant whereof 05.12.2012.

16.         No other point, was urged, by Counsel for the parties.
17.         For the reasons recorded above, the complaint is partly accepted, with costs. The opposite parties are jointly and severally, directed, as under:-
    1. To hand over physical possession of the developed plot, in question, to the complainant, within a period of 4 (four) months, from the date of receipt of certified copy of this order, complete in all respects,  after obtaining necessary occupation/partial/completion certificates, from the competent authorities, on receipt of legally due amount from her (complainant).
    2. To execute and get registered the sale deed, in respect of the plot, in question, in favour of the complainant, within two months, from the date of handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by her to the Registering Authorities.
    3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, from 05.12.2012 (promised date) to 31.01.2017, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
    4. To pay compensation by way of interest @12% p.a. on the deposited amount, w.e.f. 01.02.2017, onwards (per month), till delivery of possession, by the 10^th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made.
    5. To pay compensation, in the sum of Rs.2 lacs, on account of mental agony, physical harassment, caused to the complainant and deficiency in providing service, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
    6. To pay cost of litigation, to the tune of Rs.50,000/-  to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.
18.         Certified Copies of this order be sent to the parties, free of charge.
19.         The file be consigned to Record Room, after completion.

Pronounced.

14.02.2017

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 Rg.