Chandigarh

StateCommission

CC/96/2016

Harpreet Singh Sidhu - Complainant(s)

Versus

Ansal Lotus Melange Projects Pvt. Ltd. - Opp.Party(s)

Ravinder Pal Singh

26 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	96 of 2016
Date of Institution	:	14.03.2016
Date of Decision	:	26.07.2016

 

Harpreet Singh Sidhu son of Sh.Chanan Singh resident of Flat No.701, Tower No.9, Orchard County, Sector 115, Village Sante Majra, Kharar-Landran Road, Greater Mohali, Punjab.

……Complainant

V e r s u s

1. Ansal Lotus Melange Projects Pvt. Ltd., Regd. Office at A-1/18, Asaf Ali Road, New Delhi 110002.
2. Ansal Lotus Melange Projects Pvt. Ltd., SCO No.183-184, Sector 9-C, Chandigarh-160009.

              .... 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.Ravinder Pal Singh, Advocate for the complainant.

                 Ms.Kashika Kaur, Advocate for the opposite parties.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The facts in brief are that the complainant planned to settle alongwith his family, in or around Chandigarh. He is in medical profession, as such, he also planned to purchase a shop, near to Chandigarh, so that he is able to earn his livelihood, by way of self-employment i.e. by setting up a Homeopathic Clinic. He came to know about a project, launched by the opposite parties, under the name and style of ‘City Centre’, at Kharar-Landran Road, Mohali, Punjab. It was widely publicized, with an offer of selling shops/units therein. Information memorandum/ prospectus was supplied to the complainant, wherein various terms and conditions with regard to allotment of shops in the said project, were mentioned. It was told to the complainant that the project in question was got approved from the Government of Punjab, for the  purpose aforesaid. The complainant opted to purchase a shop measuring 53.16 square meters (572.09 sq.feet), in the said project. At the same time, a residential flat for his residence, was also purchased by the complainant in other project of the opposite parties, adjacent to the project, wherein, the shop, in question, was purchased by him.

                An amount of Rs.2.70 lacs was paid by the complainant through cheque on 30.11.2011, towards price of the said shop. Vide allotment letter dated 09.01.2012 Annexure C-2, the complainant was allotted unit bearing no.40GF, in the said project, for total consideration of Rs.25,31,498/-. 

2.         As per Clause 11 of the allotment letter, the opposite parties were required to deliver possession of the constructed shop, to the complainant, within a period of three years, from the date of booking/allotment i.e. on or before 29.11.2014 (date of booking being 30.11.2011). From time to time, the complainant had paid an amount of Rs.22,20,600/- i.e. more than 85%, against sale consideration of Rs.25,31,498/-.
3.         It is averred that after making payment of substantial amount, the complainant patiently waited for possession of the said shop. However, possession was not even offered by the stipulated date. The complainant went to the site and was  shocked to see that construction of the shop, in question, was not complete and the project was not developed as promised. Photographs clicked by the complainant, at the spot, speak themselves regarding status of construction of shop and development work at the site.
4.         It was stated that when possession of the shop was not delivered to the complainant even after expiry of more than one year from the stipulated date, and he saw that there was no possibility of the same in the near future also, as such, left with no alternative, he purchased another shop in Gillco Valley, Sector 127, Mohali, in the name of his wife, for the purpose aforesaid. The complainant alongwith his family shifted at Mohali. It was further stated that even thereafter, the complainant approached opposite parties through every possible means, to complete the construction of the shop, in dispute, and deliver possession thereof, but they failed to do so. Under those circumstances, the complainant approached the office of the opposite parties, a number of times, seeking refund of the amount deposited by him, for the shop, in dispute, but to no avail. It was further stated that the aforesaid acts of the opposite parties amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the Act only), was filed, seeking refund of the amount deposited alongwith interest, compensation and litigation expenses.
5.         Upon notice, reply was filed by the opposite parties. It was stated 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 Arbitrator, as such, this Commission has no jurisdiction to entertain the same (complaint). It was pleaded that the complainant being investor, has purchased the shop in dispute, for selling the same to earn profits and not for personal use, as such, he would not fall within the definition of consumer, as defined under the Act. It was averred that besides, the shop in dispute, the complainant has also purchased a residential flat in another project of the opposite parties. Not only this, he has also purchased another shop, in Gillco Valley, Mohali, Punjab, in the name of his wife.  Territorial jurisdiction of this Commission was also disputed.  
6.         Booking of the unit, in question, and fact of making payment aforesaid by the complainant, is admitted. It is also admitted that as per Clause 11 of the allotment letter, possession of the shop was to be delivered within a period of three years, from the date of booking/allotment. It is stated that 36 months for delivery of possession of the unit was only tentative period, as such, time was not the essence of contract. It was stated that not only as above, it was agreed to between the parties, that the said three years were to be counted from the date of booking/allotment, once all necessary approvals and sanctions have been obtained from Competent Authorities, whichever is later. It was further stated that complainant even defaulted in making payment towards the said unit, as a result whereof, various reminders were sent to him, in the matter, followed by cancellation notice dated 04.04.2013. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
7.         In the rejoinder filed, the  complainant reiterated all the averments contained in the complaint, and repudiated those, made in the written version of the opposite parties.
8.         The parties led evidence in support of their case, by way of filing their respective affidavits, alongwith which, number of documents were attached. 
9.         After giving our thoughtful consideration, to the contentions, advanced by Counsel for the parties and the evidence, on record, we are of the considered opinion that the complaint needs to be allowed. It is not in dispute that a shop was allotted to the complainant by the opposite parties vide allotment letter dated 09.01.2012, against total sale consideration of Rs.25,31,498/-. Possession of the shop was agreed to be delivered within three years, from the date of moving application dated 30.11.2011, for allotment i.e. on or before 29.11.2014. Admittedly, even today, construction is not complete and as per Counsel for the opposite parties, delivery of possession of the unit, will still take some time. More than four and a half years have elapsed, the opposite parties have failed to fulfill their promise. This act clearly shows that they are deficient in providing service.
10.         Not only as above, deficiency in providing service, and adoption of unfair trade practice, on the part of the opposite parties, is writ large, as admittedly (para no.5 of the preliminary objections), they sold the project, in question, without obtaining necessary sanctions, approvals, permissions/clearances from the Competent Authorities. A builder is bound to take all necessary approvals/clearances from the Competent Authorities before launching and selling the project. In was so said by the Hon’ble National Commission Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7 (NC), in which a similar plea regarding non-grant of various sanctions,  approvals  and  certificates  in  respect of the  DLF project, by the Government concerned, resulting into delay in delivery of possession of the unit, was raised by the Builder. However, in that case, while brushing aside the said plea of the builder, it was observed and held as under:-

“The main questions which require consideration in the appeal are—

(i)  Can a builder give alluring advertisement promising delivery of possession of the constructed building/flat to the purchaser/ consumer within the stipulated time, and, subsequently, on his failure, turn around and contend that as governmental permissions, such as, approval of zoning plan, layout plan and schematic building plan, were not given, the delay in construction should not be the ground for grant of compensation to the consumer? And,

(ii)   Secondly, whether the consumer should suffer by paying escalation cost due to such delay?

2. In our view, it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as zoning plan, layout plan and schematic building plan. It is the duty of the builder to obtain the requisite permissions or sanctions such as sanction for construction, etc., in the first instance, and, thereafter, recover the consideration money from the purchaser of the flat/buildings.

3. Secondly, in such a case, if there is any express promise that the premises would be delivered within the stipulated time, and, if not done so, escalation cost is required to be borne by the builder.”

11.         The principle of law, laid down in the aforesaid case, is fully applicable to be present case. In this view of the matter, it is held that the opposite parties were deficient in providing service, to the complainant, on this count too.
12.         The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Allotment Letter, 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.

                To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

13.         Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of 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) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.
14.         In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

 “8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

15.         Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, this Commission has no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.
16.         Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement/Allotment Letter, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement/Allotment Letter, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.
17.         We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for earning his livelihood, in the manner, referred to above. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.2000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite parties. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.
18.         The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the unit, in the said project, launched by the opposite parties. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the constructed unit, in question, in a developed project. As per ratio of the judgments in the case of 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), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.
19.         Not only this, recently, it was also so said by the National Commission, 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.”

20.         In view of the above, the plea taken by the opposite parties, that in the face of existence of arbitration clause in the Allotment Letter, 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, being devoid of merit, is rejected.
21.         It is vehemently contended by Counsel for the opposite parties that the complainant would not fall within the definition of consumer, as defined under the Act, as he had made investment to gain profit in future. It is stated that besides the shop, in dispute, he had purchased another shop in Mohali, Punjab, nearby their project, in some other project, namely Gillco Valley and also a flat in a project owned by them (opposite parties).

                Be that as it may, in his complaint, it has been specifically stated by the complainant that he had purchased a residential unit/flat in the project of the opposite parties to settle himself alongwith family, near to Chandigarh and since he is a medical practitioner, the shop was purchased to start his practice by self-employment to earn his livelihood. Relevant para 3 of the complaint reads thus:-

“That since the complainant has planned to move and settled near the city beautiful, Chandigarh hoping for a better future as there are numerous professional opportunities for his own medical profession for earning livelihood as well as for best in class educational opportunities for their children. In furtherance thereto,  being into the medical profession, with an intention to settle their Homeopathic Clinic for himself for earning his livelihood by way of self employment near his residence agreed to purchase the said unit/shop measuring a super area of 53.16 sq. mtrs (572.09 sq.ft.) in CITY CENTRE project of the OPs at Mohali”.

 

                Even otherwise, 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. 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. It is settled law that a purchaser of property falls under the definition of a consumer, if any dispute arose out of the same, unless it is proved that the said property has been purchased by him or her, for commercial purpose i.e. reselling the same, for earning profits therefrom. 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 their written reply, therefore, being devoid of merit, is rejected.  

                It is also very significant to mention here that the complainant has specifically averred that the said shop was purchased by him to earn his livelihood, by way of self-employment, by running a medical Clinic, he being in medical profession. In Laxmi Engineering Works Vs. P.S.G. Industrial Institute,  1995 AIR 1428, 1995 SCC (3) 583, the Hon’ble Supreme Court of India has specifically stated that if the commercial use is by the purchaser himself/herself, for the purpose of earning livelihood, by means of self-employment, such a purchaser of goods is yet a consumer. It was further said that to know that whether the goods have been purchased for commercial purpose, it is to be decided in the facts of each case. It is not value of the goods that matters, but the purpose, to which the goods bought are put to. Not only as above, it was further said that if in the process of earning livelihood, a person takes the assistance of one or two persons, to assist or help him in operating the machinery, he does not cease to be a consumer. The principle of law laid down in Laxmi Engineering Works' case (supra)  is fully applicable to the facts of the present case. The objection raised by the opposite parties, in this regard, therefore being devoid of merit is rejected.

22.         Another objection raised by Counsel for the opposite parties that since it was mentioned in the Allotment Letter that the Company shall propose to deliver possession of the unit within maximum period of three years from the date of booking, as such, time was not the essence of contract, is also devoid of merit. In the first instance, it is submitted that in the instant case, the opposite parties did not raise any force majeure circumstances, if any, encountered by them, as a result whereof, construction could not be completed. In the absence of any force majeure circumstances having been faced by the opposite parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condoning the delay in delivery of possession of the unit, to the complainant, on the ground aforesaid, cannot be taken into consideration. Under these circumstances, the opposite parties were bound to deliver possession of the unit, within a maximum period of three years from the date of allotment of unit, as such, time was, unequivocally made the essence of contract.

                Even otherwise, the opposite parties cannot evade their liability, merely by saying that since the words “proposed to be delivered” was mentioned in the Allotment Letter, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/Allotment Letter, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon'ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the opposite parties in this regard also stands rejected.

23.         The next question that falls for consideration, is, as to whether, this Commission has 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 complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident from copies of the payment receipts that the same were issued by Corporate Office of the opposite parties at Chandigarh, as the same bore the address of the Company as “Corporate Office: SCO-183/184, Sector 9-C, Madhya Marg, Chandigarh”. This fact is further fortified from the payment receipt dated 21.01.2012 Annexure C-3, in the sum of Rs.3 lacs, as the same bore the stamp of Chandigarh Office of the Company. 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. 

24.         The next question that falls for consideration, is, as to whether, cancellation notice dated 04.04.2013 sent by the opposite parties, in respect of the unit, in question, to the complainant can be said to be genuine or not. In the first instance, it may be stated here that not even a single document has been placed on record by the opposite parties to prove that any letter/reminder(s) etc. were ever sent to the complainant, before sending the alleged cancellation notice. Even this much has not been proved by the opposite parties, as to by which mode, this cancellation notice was allegedly sent to the complainant. Not even a single reference of any letter/reminder with date(s), has been made in this cancellation notice by the opposite parties or in the reply filed before this Commission. Merely writing words “despite our several efforts and letters/reminders etc. sent to you by post” in the cancellation notice, in the absence of placing on record the same, cannot be taken into consideration. On the other hand, the complainant has specifically denied receipt of this cancellation notice. Under these circumstances, it is held that since the authenticity of cancellation letter is doubtful and the opposite parties have failed to prove that the same was actually sent to the complainant, it is held that it was never sent by them, to the complainant.

                Even otherwise, it has also not been clarified by the opposite parties, that when the complainant had already made  payment of substantial amount of Rs.22,20,600/- against total sale consideration of Rs.25,31,498/- i.e. more than 85% by July 2013, and on the other hand,  even as on today, they (opposite parties) are not ready to deliver possession of the unit, for want of construction and development activities and also necessary approvals/sanctions, why they allegedly demanded the balance amount in April 2013, which (balance amount) was required to be paid only after completion of all services and at the time of offer of possession, as is evident from the construction linked payment plan (at page 26 of the file). No help therefore can be drawn from the said cancellation notice, by the opposite parties, to contend that the complainant was defaulter in making payment towards price of the said unit. This act of the opposite parties amounted to unfair trade practice.

25.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.22,20,600/- deposited by him. It is an admitted fact that the  opposite parties are unable to deliver  possession of the constructed unit, in question, for want of basic amenities etc., necessary approvals/sanctions from the Competent Authorities  and firm date of delivery of possession of the unit, could not be given to him (complainant), even as on today. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit purchased by him. 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 him. 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 him, as also escalation in prices.

                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.22,20,600/- 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 @18% p.a. as per Clause 5 of the Allotment Letter, 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 him, to the tune of Rs.22,20,600/- alongwith interest @12 % p.a., from the respective dates of deposits till realization. 

26.         No other point, was urged, by Counsel for the parties.
27.         For the reasons recorded above, the complaint is partly accepted, with costs. The  opposite parties are jointly and severally directed as under:-

 

1. To refund the amount Rs.22,20,600/- to  the  complainant, alongwith interest @ 12 % p.a.,  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 complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.30,000/- to the  complainant.
4. 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 @ 15% p.a., instead of @12%, from the respective dates of deposits onwards, and interest @ 15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

28.         However, it is made clear that, if the complainant has 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 him (complainant).
29.         Certified Copies of this order be sent to the parties, free of charge.
30.         The file be consigned to Record Room, after completion.

Pronounced.

26.07.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

Rg.