Chandigarh

StateCommission

CC/91/2016

Kiranjeet Sandhu - Complainant(s)

Versus

BCL Homes Ltd. - Opp.Party(s)

Ravinder Pal Singh

23 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint No.	:	91 of 2016
Date of Institution	:	09.03.2016
Date of Decision	:	23.06.2016

 

Kiranjeet Sandhu wife of Sh.Daljeet Singh Sandhu, resident of House No.1533, Sector 33-D, Chandigarh.

…Complainant

V e r s u s

1. BCL Homes Ltd., Registered Office at Shop No.140, Railway Station Road, Village Dariya, U.T., Chandigarh, through its Managing Director/Director.
2. BCL Homes Ltd., Village Kishanpura, NAC Zirakpur, District Mohali, Punjab, through its Project Manager/Authorized Representative.

....Opposite Parties

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

 

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

                        MR. DEV RAJ, MEMBER.

 

Argued by:-       Sh.Ravinder Pal Singh, Advocate for the complainant.

                        Sh.Sukaam Gupta, Advocate for the opposite parties.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

 

                The facts, in brief, are that the opposite parties floated a group housing project, under the name and style of “Chinar Homes”, Kishanpura, Zirakpur, District Mohali, Punjab. Very attractive pictures of the houses to be constructed, were shown/given through brochure Annexure C-1 (at page 18 of the complaint file). Attracted by rosy pictures of the project, given under the said brochure, the complainant decided to purchase 3 BHK flat (in short the unit), measuring approximately 2170 square feet. Total sale consideration of the unit was fixed at Rs.51,54,500/-. The complainant paid the entire sale consideration, to the opposite parties. Vide allotment letter dated 20.04.2012, the complainant was allotted unit no.1107 on 11^th Floor of the Tower to be constructed by the opposite parties. It is stated in the complaint that as per allotment letter, the opposite parties were to provide all internal services, within the peripheral limits of the complex, which includes laying of roads, water lines, electric lines, sewer lines etc.  It was further assured that other services and facilities, as mentioned in the brochure were also to be provided, before handing over actual physical possession of the unit, to the complainant. 

2.         As per clause 9 of the allotment letter, possession of the unit, in question, was to be delivered to the complainant, by the opposite parties, within a period of 18 to 24 months, with a grace period of three months (total 27 months), from the date of issuance of the allotment letter, after providing all the basic amenities. It was further stipulated in clause 9, that, in case, the opposite parties, failed to deliver possession of the unit, by the said date, they were liable to make payment of Rs.10,000/- per month, to the complainant, towards rent, for the period of delay, by way of compensation. The time to handover possession expired on 19.07.2014, neither possession was offered, nor compensation aforesaid, was paid by the opposite parties, to the complainant.   
3.         When possession of the unit was not offered, the complainant visited the project in the year 2014 and she was shocked to see that there was no development at all. Construction activities had been stopped, in between and there was no construction qua laying of basic amenities to be provided to the purchasers, who had invested in the group housing project, referred to above. On inquiry, it was told to the complainant that possession of the unit is likely to be handed over within a period of three to four months, however, nothing was done. Under above circumstances, she filed a consumer complaint, claiming refund of the amount paid, alongwith interest, compensation and litigation expenses.
4.         It was specifically averred in the complaint that the entire project i.e. the land and the construction raised thereupon stood mortgaged with the Canara Bank, Sector 8, Chandigarh. Above fact was not disclosed to the complainant, when unit was sold to her. It also came to the notice of the complainant that the said Bank had initiated proceedings before the Debt Recovery Tribunal at Chandigarh, to realize its amount, advanced to the opposite parties. It was prayed by the Bank, that let the amount be recovered by selling the property and the construction raised thereupon. At that time, the complainant alongwith 102 more allottees moved an application before the said Tribunal to safeguard their interest. To say that construction had stopped, photographs Annexures C-4 were brought on record. It was alleged that despite making payment of entire amount towards price of the unit, possession has not been delivered to the complainant. It was further alleged that there was no compliance to the mandatory provisions of law, qua construction to be raised in the proposed project. It was further alleged that there was deficiency in providing service and further that the opposite parties have indulged into unfair trade practice. The entire project was lying mortgaged, however, the said fact was not disclosed, when unit was sold to the complainant.
5.         Upon notice, reply was filed by the opposite parties. Many technical objections were raised stating that in the face of existence of an 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 no jurisdiction to entertain the consumer complaint. It was further stated that since the unit, in question, was purchased by the complainant for commercial purpose i.e. for investment purpose, as such, she would not fall within the definition of a consumer. It was further stated that dispute between the parties being of civil nature, could only be adjudicated upon by a Competent Civil Court. Territorial jurisdiction of this Commission was also disputed. It was pleaded that the present complaint is barred by limitation. It was averred that the complaint is bad for non-joinder and misjoinder of parties. However, sale of unit to the complainant was not denied.
6.         On merits, it was stated that delay in construction of the unit(s) was caused due to force majeure circumstances i.e. non availability of sand and other building material, on account of stay order passed by the Apex Court. Raising of loan by the opposite parties, from the Canara Bank and mortgage of the project land and construction to be raised thereupon, was admitted. It was stated that the brochure so referred, was conceptual and subject to certain modifications. It was averred that the opposite parties have started handing over possession of the units, to the allottees. The remaining averments were denied, being wrong.  
7.         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.
8.         The parties led evidence, in support of their case.
9.         At the time of arguments, Counsel for the parties, raised objections in terms of pleas taken by them, in the complaint and written statement, respectively.
10.         The first question, that falls for consideration, is, as to whether, 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 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.”

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

                Unamended provisions of Section 8 of 1996                    Act, 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.”

12.         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.
13.         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.”

 

14.         Now it is to be seen, whether, after making amendment in Section 8 of the principal Act, any additional rights have accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling disputes through an Arbitrator, this Commission is not empowered 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.

15.         Now, we will have to see what difference has been made by effecting 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, 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 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 for arbitrator, 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, 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. Otherwise also, where there is any ambiguity in understanding meaning of provision of law, or where two interpretations are possible, one beneficial to a consumer would be accepted.
16.         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 her entire life savings to get a unit, to have a roof over her head. Her 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.4000/-). 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 party. 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,  the consumer will be forced to (as in the present case) pay huge expenses. In the present case, the complainant is claiming refund of Rs.51,54,500/- alongwith interest, compensation and litigation costs, aggregate value whereof, if added may be near about Rs.1 crore. In that event, the complainant will be forced to pay an amount of Rs.1,68,750/-  towards her share of Arbitrator 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.
17.         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 her entire life earnings to purchase a unit, in a housing project, launched by the opposite parties. However, her  hopes were shattered, when despite making payment of entire amount towards price, she failed to get possession of a plot, in a developed project. As per established ratio of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and also in the judgment of 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), it was said that the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer 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.
18.         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.”

                In view of the above, the argument raised by Counsel for the opposite parties that 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 no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.

19.         An objection was also raised by the opposite parties, to the effect that the complainant, being investor, had purchased the unit, in question, for earning profits, as and when there is escalation in the prices of real estate, as such, she would not fall within the definition of a consumer, as defined under Section 2(1)(d) of 1986 Act. It may be stated here that there is nothing, on the record to show, that the complainant is the property dealer and is indulged in sale and purchase of property, on regular basis. On the other hand, it has been clearly averred by the complainant, in para no.17 of her complaint that the unit, in question, was purchased by her, for her residential purpose. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, 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. The principle of law, laid down, in Kavita Ahuja’s case (supra) 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. 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 complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, in their written reply, therefore, being devoid of merit, is rejected.  
20.         Another objection was raised by the opposite parties, in their written version, that this Commission has got no territorial jurisdiction to entertain and decide the complaint.

                According to Section 17 (2) (b) of the Act, a complaint can be filed in the State Commission, within the limits of whose jurisdiction, any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution. It is significant to mention here that the complainant has placed on record, a document Annexure C-8, downloaded from the official website of the Ministry of Corporate Affairs,  wherein, the address of Registered Office of the opposite parties, have been mentioned as “Shop no.140, Village Dariya, Chandigarh” and its status has been shown as “Active”. On the other hand, it has not been denied by the opposite parties, that they have no Registered Office at Chandigarh. This fact is further evident from one of the similar consumer case, filed by one of the allottee, against the same builder (opposite parties), titled as Chand Berry and another Vs. BCL Homes Ltd. and others, CC No.292 of 2015 decided on 19.02.2016, by this Commission, that  the Registered Office having the same address, as mentioned above, was also made as opposite party no.1, in that complaint, through its Authorized Signatory.  Notice in that case was accepted by Registered Office of the opposite party. In these circumstances, it could easily be said that the opposite parties, are having their registered office at Chandigarh, from where, they are carrying on business and personally works for gain. Therefore, in our considered view, the complaint can be entertained and adjudicated upon by this Commission, at Chandigarh, in view of the provisions of Section 17(2)(b) of the Act. 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. 

21.         Another objection was taken by the opposite parties, in their written version, that since the complainant sought enforcement of the allotment letter, in respect of the unit, in question i.e. immovable property, only a suit, in the Civil Court was maintainable.

                The complainant hired the services of  the opposite parties, for purchasing the unit, in question, and she was allotted the same for consideration. According to clause 9 of the allotment letter,  the opposite parties were required to hand over possession of the unit, in question, to the complainant, within a period of 18 to 24 months, with a grace period of three months (total 27 months), from the date of issuance of the same (allotment letter), after completing all the basic amenities. It was not that the complainant purchased the unit, in an open auction, on “as is where is basis”.  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”

22.         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 Act, provides an alternative remedy. Even if, it is assumed that the complainant had a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, could be availed of by her, as she falls within the definition of a consumer. In this view of the matter, the objection  taken by  the opposite parties, in their written version, being devoid of merit, must fail, and the same stands rejected.
23.         Further objection was taken by the opposite parties, in their written version, that the complaint filed by the complainant, was barred by time.

                As stated above, according to the clause 9 of the allotment letter, possession of the unit, in question, was to be delivered, to the complainant, within a period of 18 to 24 months, with a grace period of three months, from the date of issuance of the same (allotment letter) i.e. on or before 19.07.2014. Neither possession of the unit, was handed over to the complainant, by the stipulated date for want of construction and basic amenities, at the site, as has been frankly admitted by  the opposite parties, in their written version nor the penalty amount, as provided in allotment letter, was paid to her nor the amount deposited by the complainant was refunded to her. There was, thus, a continuing cause of action, in favour of the complainant, to file the complaint. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the petitioner, knowing fully well that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon'ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The objection taken by  the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.  

24.         Admittedly, possession of the unit was not offered to the complainant by the stipulated date or even till date. No doubt, a plea has been taken by the opposite parties, in their written version, to the effect, that since the Hon’ble Supreme Court has imposed ban on mining, as such, building material such as sand gravel etc., remained short to an extent, meaning thereby that they had encountered force majeure circumstances.

                It may be stated here that as regards the alleged shortage of construction material like water, bricks and sand in the market, nothing has been placed on record, by the opposite parties, to prove that they were unable to procure the said construction material, in adequate quantity. There is no evidence of the opposite parties having invited tenders for supply of construction material and there being no response to such tenders. At the same time, it has also been claimed by the opposite parties that now they have started handing over possession of the units, to the customers. If it is assumed to be true, that it remained unexplained by the opposite parties, as to how, they had been able to cover up the shortage of construction material, when there was ban on mining, as alleged. A similar plea for delay in delivery of possession of the units, was taken by a builder, 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,  which was rejected and the complaint was allowed in favour of the complainant. The principle of law, laid down, in the aforesaid case, is fully applicable to be present case. In the present case also, the opposite parties failed to convince this Commission, that they encountered force majeure circumstances, as a result whereof, delay in handing over possession of the unit occurred. As such, the stand taken by them, in this regard, is rejected. 

25.         It is an admitted fact that in a housing project of  the opposite parties, the complainant had purchased a built-up unit bearing No.1107, measuring 2170 square feet, for an amount of Rs.51,54,500/-. As per clause 9 of the allotment letter dated 20.04.2012, possession of the unit, complete in all respects, was to be delivered to the complainant, within a period of 18 to 24 months, with a grace period of three months, from the date of issuance of allotment letter i.e. on or before 19.07.2014. Admittedly, as per payment schedule, the complainant had paid the entire sale consideration, towards the said unit. Completion of project is not in sight, even today, as no tangible evidence, in that regard, has been placed on record, by the opposite parties. It is also not in dispute that the entire land falling underneath the project and the construction raised thereon, including the unit, in question, was mortgaged by the opposite parties, with the Canara Bank.

                It is a case of failed promise and virtually deceit has been committed by  the opposite parties, with the complainant. It was never disclosed to the complainant, by  the opposite parties,  that the entire project land and construction to be raised thereon, stood mortgaged with the Canara Bank. Virtually after making the entire sale consideration of the unit, delivery of possession thereof is not expected even in near future. It is well settled law that that when the promoter/builder violates material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. In the instant case also, as stated above, possession of the unit has not been offered till date. 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.

26.         Whether the complainant is entitled to interest on the amount deposited alongwith interest, if so, at what rate? It is an admitted fact that an amount of Rs.51,54,500/- was paid by the complainant, to the opposite parties. The said amount has been used by the opposite parties, for their own benefit. 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).  If interest @12% p.a., on an amount of Rs.51,54,500/-  from the respective dates of deposits, till realization, is granted, that will meet the ends of justice.
27.         No other point, was urged, by Counsel for the parties.   
28.         For the reasons recorded above, this complaint is partly accepted, with costs.  The opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of   Rs.51,54,500/-, to  the complainant,  alongwith simple interest @12% per annum, 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.30,000/-, to the complainant.
4.  The aforesaid awarded amounts, in the manner mentioned in clauses (i) to (iii), shall be paid by  the opposite parties, to the complainant,  within a period of 2 months, from the date of receipt of a certified copy of this order, failing which, the amount mentioned in clause (i) shall carry penal interest @15% per annum instead of 12% per annum, from the respective dates of deposits till realization and the amounts mentioned in clauses (ii) and (iii) shall carry interest @15% per annum, from the date of filing of this complaint, till realization.

29.         However, it is made clear that, in case, the complainant has availed loan facility from any financial institution(s), it shall have the first charge of the amount payable, to the extent, the same is due to be paid by her (complainant).
30.         Certified Copies of this order be sent to the parties, free of charge.
31.         The files be consigned to Record Room, after completion.

Pronounced.

23.06.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Rg.