Chandigarh

StateCommission

CC/109/2016

Ramneet Bhangal - Complainant(s)

Versus

Unitech Ltd - Opp.Party(s)

Sanjeev Sharma

13 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	109 of 2016
Date of Institution	:	21.03.2016
Date of Decision	:	13.06.2016

 

Ramneet Bhangal daughter of Lt. S. Sucha Singh resident of A-6/1, Welcom C.G.H.S. Ltd., Plot 6, Sector – 3, Dwarka, New Delhi – 110078.

…… Complainant.

V e r s u s

1. Unitech Limited, through its Chairman Sh. Ramesh Chandra having its marketing office at SCO 189-190-191, Sector 17-C, Chandigarh.
2. Unitech Limited, through its Managing Director, Sanjay Chandra having registered office at 6, Community Centre, Saket, New Delhi – 110017.

              ....Opposite Parties.

 

Complaints under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:         MR. DEV RAJ, PRESIDING MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:-     Sh. Sanjeev Sharma, Advocate for the     complainant.

Ms. Vertika H.Singh, Advocate for the Opposite Parties.

 

PER DEV RAJ, PRESIDING MEMBER.

            The facts, in brief, are that the complainant applied for an Independent Floor in the project of the Opposite parties, i.e. Uniworld City, Sector 97, Mohali, Punjab. She was allotted Flat No.D-02-0082 (3 Bedroom) in Executive Floors in the said Project, for an amount of Rs.52,89,370/- vide allotment letter dated 25.11.2011 (Annexure C-1). Buyer’s Agreement (Annexure C-2) was executed between the parties on 09.01.2012. As per Article 4.a.(i) of the Agreement, the Opposite Parties were to deliver possession of the unit, in question, to the  complainant, within a period of 12 months, from the date of execution of the same (Agreement) i.e. from 09.01.2012. Thus, possession of the unit was to be delivered on or before 08.01.2013. The complainant continued to make payments, as and when asked by the Opposite Parties and, in all, she had paid an amount of Rs.52,55,144/-. The complainant also availed home loan from HDFC Chandigarh for Rs.42,31,496 and Tripartite Agreement (Annexure C-5) was executed. It was further stated that when possession was not offered, the complainant on getting suspicious, visited the site, in question, on 19.01.2013 and was shocked to see that no development was there on the actual project site at Sector 97, Mohali where the floor allotted to her was situated. It was further stated that there was no approach/connecting roads, no proper internal roads, no water and drainage system, no street lights and there was not even a semblance of any development being carried out at the project. It was further stated that even after passage of nearly five years, possession has not been handed over/offered to the complainant till date. It was further stated that the complainant cannot be made to wait for possession for indefinite period. It was further stated that the complainant sought refund of the amount deposited alongwith interest vide letter dated 08.12.2015 (Annexure C-6) but the Opposite Parties did not refund the same. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties, to refund Rs.52,55,144/- alongwith interest @18% per annum, from the date of deposit,  pay Rs.5,00,000/- as compensation for physical harassment and mental agony besides Rs.55,000/- as cost of litigation or any other relief, which this Commission deemed fit in the facts and circumstances of the case.

2.         The Opposite Parties, in their joint written statement, took up certain preliminary objections, to the effect that since the property, in dispute, is situated in Mohali; Buyer’s Agreement was executed at New Delhi; and even the demand for payment was also raised from that place; payments were also made through bank in an account maintained by the Opposite Parties at New Delhi; Regional Office of Opposite Parties has only accepted the payments, as facilitator for convenience of the customers but the payments received were forwarded to the Head Office situated at Gurgaon, this Commission lacks territorial jurisdiction; that this Commission has also got no pecuniary jurisdiction to entertain and try the complaint; that the unit, in question, was purchased for future gain, as such, the  complainant would not fall within definition of a consumer, as defined under Section 2 (1) (d) of 1986 Act and that the averments made in the complaint do not constitute consumer dispute as the issues raised related to the contractual matter arising out of the term and conditions of the Agreement, which could only be adjudicated in civil proceedings.

 

3.         On merits, it is admitted that the complainant had purchased a residential unit, from the Opposite Parties, in the manner, referred to above. Fact qua price of the unit, as mentioned in the complaint is also admitted. It was admitted that as per Article 4.a.(i) of the Agreement, in the first instance, the Opposite Parties were to hand over possession of the unit, in question, to the  complainant within a period of 12 months, from the date of execution of the same (Agreement), subject to force majeure conditions. It is stated that time was not the essence of contract, as the period mentioned in the Agreement(s), for delivery of possession of the unit, was only tentative.  It was further stated that as per Clause 4c of the Buyer’s Agreement, the developer was liable to pay compensation calculated @Rs.5/- per sq. ft. per month of the saleable area of the floor for the period of delay in offering possession of the said floor beyond the period of 12 months from the date of signing of the Buyer’s Agreement. It was further stated that such charges were to be adjusted at the time of issuance of notice of possession.

4.         It was further stated that the Opposite Parties were facing lot of impediments in getting the electricity from PSPCL, which further delayed the construction work. It was further stated that the answering Opposite Parties have sorted all its problems with the PSPCL and paid the requisite Bank guarantee and have requested to release 1 MVV connection for the project vide letter dated 08.01.2016. It was admitted that despite all the odd conditions, the answering Opposite Parties are making every endeavor to complete the development work at the site and making sincere efforts to handover possession of the said floor to the complainant. It was further stated that as per Clause 8(b) of the Buyer’s Agreement, the answering Opposite Parties are entitled to reasonable extension of time of agreed date for delivery  of  possession of the floor. It was further stated

 

that the construction work is in full swing and the possession shall be shortly handed over to the complainant. It is clarified that the Opposite Parties could not hand over possession of the unit to the  complainant, by the stipulated date, as there was global meltdown/recession of the economy worldwide, resulting into cash crunch throughout and also due to some 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 development work and providing of the basic amenities was delayed. It was stated that the Opposite Parties vide letter dated 03.02.2016, have applied to the Competent Authority, to issue partial completion certificate, in respect of the project, in question. It was further stated that the Opposite Parties were neither deficient, in rendering service nor they indulged into unfair trade practice. The remaining averments, made in the complaint, were denied.

5.         In the rejoinder filed by the complainant, she reiterated all the averments contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.

6.         The parties led evidence in support of their cases, by way of filing their respective affidavits, alongwith which, number of documents were attached. 

7.         On completion of the proceedings, arguments of the parties were heard, in detail.

8.         At the time of arguments, besides raising arguments, as reflected in the reply filed, an additional issue was raised by Counsel for the Opposite Parties that in view of Section 8 of the Arbitration and Conciliation Act, 1996 [as amended vide the Arbitration and Conciliation (Amendment) Act, 2015], to settle disputes between the parties, the matter is required to be referred to an Arbitration, as such, this Commission has no jurisdiction to entertain the same (complaint).

9.         It may be stated here that the objection raised by the Opposite Parties, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016 and Praveen Kumar Arora and another Vs. Emaar MGF Land Limited, Consumer Complaint no.198 of 2015, decided on 04.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon’ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even in the face of existence of arbitration clause in the Agreement, 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. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

10.         In view of the above, and also in the face of ratio of judgments, referred to above, the arguments raised by Counsel for the Opposite Parties, stands rejected.

11.        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 could be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case,  it is evident, that out of the deposited amount, part amount of Rs.30,817/-, in respect of the unit, in question, was received by Regional Office/Marketing Office of the Opposite Parties, at Chandigarh i.e. “Unitech Ltd., Regional Office, SCO 189-191, Sector 17-C, Chandigarh-160017”, vide cheque dated 01.02.2012 (Annexure C-3). Further letter (Annexure C-6) was also received by the Opposite Parties at their Regional Office at Chandigarh, whereby the complainant sought refund of the deposited amount alongwith interest @18% per annum. Since, as per the documents, referred to above, 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 the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

12.         Another objection raised by Counsel for the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainant has sought refund of the amount of Rs.52,55,144/-, paid by her, towards price of the unit, alongwith interest @18% p.a., from the respective dates of deposits, till realization; compensation to the tune of Rs.5 lacs, for mental agony  physical harassment and deficiency in rendering service; and cost of litigation, to the tune of Rs.55,000/-, aggregate value whereof [excluding the interest claimed] came to be around Rs.58,10,144/- and, as such, fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint, for the reasons given hereinafter.

13.        Now, the question, that arises for consideration, is, as to whether, interest @18% p.a., claimed by the complainant, on the amount of Rs.52,55,144/-,   aforesaid, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission.  In Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/- it (amount) will exceed Rs.20 lacs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

“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.

Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs”.

14.        Not only this, a similar question regarding pecuniary Jurisdiction, came up for consideration before this Commission, in a case titled as Karnail Singh  and another Vs. M/s Emaar MGF Land Limited, Consumer Complaint No.05 of 2014 decided on 09.04.2014. In that case also, an objection was raised by the Opposite Parties (Emaar MGF Land Limited) that since the complainants,  had sought refund of amount of Rs.62,60,750/- alongwith interest @24% P.A., from the respective dates of deposits, alongwith compensation and litigation costs, as such, if the reliefs are clubbed together alongwith interest claimed, the aggregate value thereof fell above Rs.1 crore, and as such, this Commission had no pecuniary Jurisdiction to entertain the complaint. In that case, while rejecting said objection of the Opposite Parties, this Commission, by placing reliance on Shahbad Cooperative Sugar Mills Ltd.’s case (supra),  came to the conclusion that it had pecuniary Jurisdiction to entertain the complaint, and ordered refund of the amount alongwith interest, compensation and litigation costs, vide order dated 09.04.2014. Appeal filed by the Opposite Parties (Emaar MGF Land Limited) against the order dated 09.04.2014, before the National Commission, was dismissed with punitive damages of Rs.5 lacs. Still feeling aggrieved, the Opposite Parties, filed Special Leave to Appeal (C) No.29392 of 2014, which was also dismissed by the Hon’ble Supreme Court of India, in limine, vide order dated 14.11.2014. In this manner, the findings given by this Commission in Karnail Singh and another’s case (supra), by placing reliance on Shahbad Cooperative Sugar Mills Ltd.’s case (supra), to the effect that it has pecuniary Jurisdiction to entertain and decide the complaint, in the manner, referred to above, were upheld by the National Commission, and also the Hon’ble Supreme Court of India. Recently, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided On 08 Mar 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the submission of Counsel for the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

15.         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, or not.

16.        It may be stated here that there is nothing, on the record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. 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. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. 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 unit, 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 the Opposite Parties, in its written reply, therefore, being devoid of merit, is rejected.  

17.        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  Buyer’s Agreement dated 09.01.2012, the Opposite Parties were liable to deliver possession of the developed unit, within a period of 12 months, from the date of execution of the same (Agreement) i.e. latest by 08.01.2013, alongwith all basic amenities as mentioned in Article 2.a.(iii) 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 within the definition of consumer. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

18.        The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainant. According to Article 4.a.(i) of the Agreement, Annexure C-2, in the first instance, the Opposite Parties, were to hand over possession of the unit, in question, to the  complainant, within a period of 12 months, from the date of execution of the same (Agreement) i.e. by 08.01.2013. Admittedly, possession of the unit, was not delivered to the complainant, by 08.01.2013 or even till date. Even, 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 failed to complete the 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). 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 unit. Admission made by the Opposite Parties, itself makes it clear that they had not obtained necessary approvals/sanctions from the PSPCL, as a result whereof, they were not provided with electricity, for the project in question. Secondly, when the Opposite Parties, had already received more than 95% of the sale consideration of the unit, in question, from the allottee(s), then they can not be heard to say 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 units 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.

19.        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 of unit(s). 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 of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. 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 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 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  Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  decided on 14 Aug 2015. 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.”.

20.        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 Clause 8.b. of the Agreement, for extension of period, for delivery of possession of the unit. By making a misleading statement, that  the possession of unit, in question, would be, in the first instance, delivered within a period of 12 months, from the date of execution of the Agreement (Annexure C-2) 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.

21.        An objection was also taken by the Opposite Parties that time was not the essence of contract. It may be stated here that, it was clearly mentioned in Clause 2.d. of the Agreement aforesaid, that time is essence of the contract. It was stated under the said Clause that “It shall be incumbent on the Purchasers to comply with the terms and conditions of payment and/or other terms and conditions of sale as stipulated in the Agreement”. Terms and conditions of the Agreement are binding upon both the parties, and no one can wriggle out of the same. At the same time, it is also very pertinent to mention here that as per Clause 4.a. of the Agreement, it was clearly mentioned that, subject to force majeure conditions, possession of the unit, was to be handed over to the complainant, within a period of 12 months, from the date of execution thereof (Agreement). However, despite that, the Opposite Parties miserably failed to do so. The time was, thus, unequivocally made the essence of contract. The objection taken by the Opposite Parties, in this regard, thus, being devoid of merit, must fail, and the same stands rejected.

22.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.52,55,144/-, deposited by her. It is an admitted fact that the Opposite Parties are unable to deliver  possession of the unit, in question, on account of pending development works, want of basic amenities, and non-provision of electricity, as admitted by them, and firm date of delivery of possession of the unit, could not be given to her (complainant). The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. As stated above, the Opposite Parties failed to prove, by placing on record, any cogent and convincing material, that it encountered any force majeure circumstances, as a result whereof, possession of the unit, in question, was delayed. On the other hand, stand taken by the Opposite Parties, in this regard, has been negated by this Commission, while giving detailed findings. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is, thus, entitled to get refund of amount deposited by her. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her, as also escalation in prices.

23.        It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.52,55,144/-,  i.e. more than about 95% of the sale consideration, was paid by the  complainant, 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%) 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  complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs.52,55,144/-alongwith interest @15% compounded quarterly, from the respective dates of deposits (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.

24.         As far as the plea taken by the Opposite Parties regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not the case of the Opposite Parties, that they were ready with possession of the constructed unit, to be delivered to the complainant, by the stipulated date i.e. 08.01.2013, but it was she (complainant) who wanted to rescind the contract, on account of some inevitable circumstances/financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the Opposite Parties, only in those circumstances, it would have been held that since the complainant herself is rescinding the contract, as such, she is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected. 

25.        No other point, was urged, by Counsel for the parties.     

26.        For the reasons recorded above, this complaint is partly accepted, with costs. The Opposite Parties are, jointly and severally held liable and directed as under:-

1. To refund the amount Rs.52,55,144/-, to  the  complainant, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainant.
4. Housing Development Finance Corporation Limited shall have the first charge, on the amount to be refunded, to the complainant, by the Opposite Parties, to the extent, the amount is due to it, against the complainant as it had advanced loan in her favour for part payment of the price of flat, in question, under the Tripartite Agreement (Annexure C-5).
5. 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% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

27.        Certified Copies of this order be sent to the parties, free of charge.

28.        The file be consigned to Record Room, after completion.

Pronounced.

June 13 , 2016

 

Sd/-

(DEV RAJ)

PRESIDING MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Ad