Chandigarh

StateCommission

CC/843/2016

Balvinder Singh - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Polly Shera, Naveen Sheokhand Adv.

31 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	843 of 2016
Date of Institution	:	25.11.2016
Date of Decision	:	31.03.2017

 

Balvinder Singh son of Manmohan Singh, resident of House No.3225, Sector 28-D, Chandigarh.

……Complainant

V e r s u s

1. Emaar MGF Land Limited, SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh – UT. Pin – 160017 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. Emaar MGF Limited, Regd. Office ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001, India, through its Manager/Authorized Signatory/Office-in-charge/Director Sales & Marketing.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Polly Shera, Advocate for the complainant.

Sh.  Ajiteshwar Singh, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainant for the purpose of his residence booked a plot in Augusta Park, Sector 109 project of the Opposite Parties on 23.09.2006 and paid an amount of Rs.10,35,000/-. Plot Buyer’s Agreement was executed between the parties on 20.06.2007 (Annexure C-4), whereas, he was allotted plot No.373 measuring 300 sq. yards. The total price of the unit was fixed at Rs.36,19,104/-. The complainant paid the total amount of Rs.36,46,604/- in respect of the unit, in question. It was stated that the complainant in order to raise finance for the said plot approached LIC Housing Finance Corporation, who sanctioned a loan of Rs.20 lacs.  As per Clause 8 of the Agreement, possession of the plot was to be delivered within a period of two years from the date of execution of the Agreement but not later than 3 years. Even the Opposite Parties assured the complainant that construction of the project is in full swing but the facts on the ground were totally different because the said project has not been completed and the picture presented by the Opposite Parties was untrue. The complainant visited the Opposite Parties to know the date of possession but no satisfactory reply was given by them and the project was delayed for more than six years. It was further stated that the builder also promised the complainant to pay the compensation for delaying the possession, as per the Agreement. It was further stated that the complainant frequently visited the site and was shocked to see that the project was in worst condition, nothing was completed & ready, construction was incomplete and site was not habitable in any way. It was further stated that the builder sent an email on 04.01.2015 on the subject of having dispatched a possession letter to the complainant by post in respect of unit No. 109-MUL-13-334 in the project “Mohali Hills-Plots”. The letter never reached the complainant. According to the complainant, he was also shocked to know that he was being offered possession of a different plot he had booked and entered into a specific Agreement and also mortgaged the said plot by raising a loan. The complainant took up the issued with the builder but they failed to provide any reason. It was further stated that the complainant visited the office of Opposite Party No.1 many times to take possession and each time, their representative took him to many different locations of Sector 109 and pin pointed out a different location of the plot each time, which was far and apart by more than 0.5 to 0.75 Km. It was further stated that the complainant was constrained to foreclose the housing loan taken from LIC Housing Finance Corporation on their change in plot number, its location as well as long delay in handing over the possession of the plot, putting him to financial loss. It was further stated that the Opposite Parties vide letter dated 19.09.2016 offered physical possession of the above mentioned plot and the complainant was once again shocked to see that the Opposite Parties have changed the plot number and location unilaterally contrary to the specific Plot Buyer Agreement signed with the complainant and also raised an excess demand of Rs.15,43,055/- (Annexure C-6). It was further stated that the Opposite Parties imposed these demands on the complainant unilaterally and without the consent of the complainant. After receipt of the possession letter, the complainant came to know after visiting the project site that the other amenities/facilities, as promised, were not even ready for possession and the builder was not in a position to give possession of the plot, in question and much work was still to be done before giving the possession of the plot. It was further stated that there was no boundary walls and the land is still used for agriculture purpose and there is no security check on the entry points of the township nor a proper entry gate with a clean approach road is available. Copy of the current photographs are Annexure C-7. It was further stated that the complainant having suffered huge financial losses on account of delay in handing over the plot, is now left with no alternative but to seek refund of the deposits already made with the Opposite Parties. Ultimately, the complainant also sent legal notice to the Opposite Parties on 10.08.2016 (Annexure C-8) but to no avail. It was further stated that the aforesaid acts, on the part 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 (in short the ‘Act’ only), was filed.

2.           The Opposite Parties, in their written version, have taken objection regarding arbitration clause in the Agreement, and also they separately moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was stated that the complainant is residing at House No.3225, Sector 28-D, Chandigarh and moreover, the said residential address is even mentioned in the memo of parties. It was further stated that the complaint of the complainant is silent whether he sought to purchase a property from the Opposite Parties solely for his own use or for the purposes of gaining/realizing some monetary benefit, is indicative of the fact that the complainant sought to purchase property from the Opposite Parties for commercial purpose, excluding him from the purview of the Consumer Protection Act, 1986 and, as such, the complainant is not a consumer. It was further stated that firstly plot No.373 having an area of 300 sq. yards located in Augusta Park, Sector 109, Mohali Hills, Mohali, Punjab was provisionally allotted in favour of the complainant vide letter dated 08.05.2007 (Annexure R-2) alongwith schedule of payment. However, the complainant delayed in making the payments and, thus, was liable to pay interest. Plot Buyer’s Agreement was executed between the parties on 20.06.2007 (Annexure C-4).  As per the Agreement, total sale consideration would be Rs.36,19,104/-. As per Clause 8 of the Agreement, the Opposite Parties were required to hand over possession of the first allotment within a period of two years from the date of execution of the Agreement but not later than three years. It was further stated that the complainants delayed payments to the Opposite Parties between the years 2006 to 2009, therefore, they sent reminders to the complainant on multiple occasions (Annexure R-4). It was further stated that complainant in the year 2012 first expressed his desire to change the plot allotted to him under the first allotment, therefore, the Opposite Parties through email dated 15.05.2012 offered alternate plots located in Sectors 108-109. The complainant through his email of 20.05.2013 accepted another plot i.e. plot bearing No.109-AP-722-300 (second allotment), as such, the first allotment bearing No.373 stood cancelled. In this regard, the Opposite Parties generated an approval note of 25.05.2013 alongwith communicating the same to the complainant through letter dated 21.06.2013. It was further stated that the complainant was also informed that keeping in view the change of plot, the complainant was required to execute an amendment to the Plot Buyer’s Agreement, which too was sent alongwith the said letter dated 21.06.2013 (Annexure R-5). It was further stated that the second allotment i.e. plot No.722 also included PLC, as such, there was revision in the schedule of payment in respect of the second allotment and the said fact was also communicated to the complainant through the aforesaid letter. However, the complainant failed to execute the Amendment Agreement for the reasons best known to him. Thereafter, the complainant again requested for a larger plot measuring 334 sq. yds, as such, on his request, plot No.109-MLU-13-334 measuring 334 sq. yds (third allotment) was allotted to the complainant, therefore, the second allotment stood cancelled. It was also informed to the complainant through the aforesaid letter regarding the revised schedule and execution of the amendment Agreement in respect of the new unit. Copies of the approval note dated 06.06.2014 and letter dated 26.07.2014 are Annexure R-6. Thereafter, on 14.01.2015, the Opposite Parties sent intimation of possession in respect of MLU Plot No.13 i.e. subject matter of third allotment to the complainant (Annexure R-7). However, for the reasons best known to the complainant, he neither accepted possession of the plot nor paid the amounts in respect of maintenance, electricity, water etc. and further failed to deposit amounts in respect of stamp duty and registration charges to the Opposite Parties alongwith executing the amendment agreement. In fact, the complainant did not come forward to accept possession. The Opposite Parties sent repeated reminders i.e. reminder dated 19.09.2016 (Annexure R-8) to the complainant to take possession of third allotment but no action was taken by him. Therefore, the complainant has failed to disclose the aforesaid material facts, which are even to his knowledge. It was denied that the Opposite Parties assured that a unit would be given within a period of two years. It was denied that the complainant was shocked to know that he was being offered possession of a different plot than the one he had booked and entered into an Agreement. It was further stated that the change of location was made, on the request of the complainant himself and it was incumbent upon him to execute the amendment agreement and dispatch the same to the Opposite Parties but he failed to do so. It was further denied regarding receipt of the legal notice. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

3.           The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

4.           The Parties led evidence, in support of their case.

5.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

6.           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. This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

25.        The next 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.

26.        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.”

27.                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.”

28.      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.

29.       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.”

30.     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, the Consumer Foras have 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.

31.        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, 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, 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.

32.        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 his residential purpose. 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.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 (1996 Act),  the consumer will be forced to incur huge expenses towards his/her 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.

33.        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 plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, 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.

34.        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.”

35.     In  view of the above, the plea taken by the opposite party, 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.”

            In view of the above, the objection raised by Counsel for the Opposite Parties, being devoid of merit, is rejected.

7.             The objection taken by the Opposite Parties, to the effect that the complainant did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act as he is residing at House No.3225, Sector 28-D, Chandigarh and moreover, the said residential address is even mentioned in the memo of parties. It was further stated that the complaint under reply is conspicuously silent on whether the complainant sought to purchase a property from the Opposite Parties solely for his own use or for the purposes of gaining/realizing some monetary benefit, is indicative of the fact that the complainant sought to purchase property from the Opposite Parties for commercial purpose, as such, he is not a consumer, also deserves rejection. It is pertinent to note that the complainant in para No.3 of the complaint stated that the complainant for the purpose of his residence booked the plot with the Opposite Parties. The complainant in his rejoinder has denied that he was the owner of the said place of residence at the time of application and allotment. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the plot/unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Parties, mere bald assertion i.e. simply saying that the  complainant did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015, decided on 14 Sep. 2016”, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or hand purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. 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. 

8.           The next question that falls for consideration is as to whether, offer of possession made by the Opposite Parties, to the complainant, vide letter dated 14.01.2015 (Annexure R-7), in respect of plot bearing No.109-MLU-13-334 in Block MLU situated at Sector 109,  Mohali Hills (Project), could be said to be genuine offer or not. It is the admitted fact that initially, plot bearing No.373 having approximate area of 300 Sq. Yds. in Augusta Park, Sector 109, SAS Nagar, Mohali was provisionally allotted to the complainant vide provisional allotment letter dated 08.05.2007 (Annexure R-2 colly.). Thereafter, Plot Buyer’s Agreement was executed between the parties on 20.06.2007 (Annexure C-4). According to Clause 8 of the Agreement, possession of the said plot was to be delivered within a maximum period of three years from the date of execution of the Agreement i.e. latest by 19.06.2010 and not more than that. However, the Opposite Parties failed to offer/deliver possession of the said allotted plot No.373 to the complainant, within the stipulated time frame as mentioned in the Agreement. It is also the admitted fact that the complainant deposited the total amount of Rs.36,46,604/- in respect of the plot, in question, as is evident from statement of account (Annexure R-9).

              According to the Opposite Parties, the complainant in the year 2012 expressed his desire to change the plot and, as such, they vide email dated 15.05.2012 were offered alternate plots located in Sectors 108-109 and the complainant through his email dated 20.05.2013 accepted another plot i.e. plot bearing No.109-AP-722-300 (second allotment) and, as such, the first allotment was cancelled. It was further stated by the Opposite Parties that the second allotment also included PLC and the said fact was also communicated to the complainant vide the aforesaid letter and alongwith the said letter dated 21.06.2013, Amendment Agreement was also sent to him but he failed to execute the same. Further, the plea of the Opposite Parties is that the complainant again requested for a larger plot and on his request, plot No.109-MLU-13-334 measuring 334 sq. yds. (third allotment) was allotted to him, as such, the second allotment was also cancelled. The Opposite Parties further stated that the revised schedule and Amendment Agreement was also sent to the complainant alongwith the aforesaid letter but he failed to execute the same. The Opposite Parties further stated that they sent intimation of possession in respect of third allotment to the complainant vide letter dated 14.01.2015 (Annexure R-7) but he did not come forward to take possession of the said plot.

              On the other hand, the complainant  in para No.11 of his rejoinder has categorically denied that he ever expressed a desire or approached the Opposite Parties for a change of the plot allotted to him and stated that in fact, the complainant constantly time and again visited the office site to enquire about the allotted plot and it was in the constant endeavor of the Opposite Parties to somehow convince him to accept a plot of the mixed variety to enable them to take a stand as enumerated by them on page No.11, Paragraph No.25 of their written statement and also enable to sell preferentially located plot allotted at a premium and the complainant is of the firm view that the same has already been illegally sold to some other party. The complainant in para No.12 of his rejoinder has clearly stated that he never agreed or accepted any other plot nor executed any Amendment Agreement with the Opposite Parties, rather this is the ploy of the Opposite Parties to deny the legitimate claim of the complainant and legitimize their own failure as well cover up for their breach of the specific Plot Buyers Agreement signed between the parties and    further     collected    more   money    on    the plea that the new plot is of enhanced value                                              being a preferential plot. It was further stated by the complainant that the emails exchanged between the parties, which have been annexed as Annexure R-5, were as a consequence of the frequent visits by him to the office of the Opposite Parties, who had failed to deliver possession of the allotted plot inspite of having received full payment of cost of plot to the complainant for the past 6 years as on 20.06.2013. It was further stated that the complainant never agreed to the change as he wanted a residential plot as well as the fact that the representatives of the Opposite Parties themselves did not know the location of the plots being offered to him, as one representative showed the plot to be located at one place and the other representative showing the same number of the plot at a different location. It was further stated that the Opposite Parties never offered possession of plot No.373 in Augusta Park, Sector 109 allotted to the complainant in complete violation of the Plot Buyer’s Agreement between the parties even after a lapse of more than 8 years 9 months from the date of execution of the Agreement signed between the parties, despite receipt of full cost of the plot.

              After going through the documents annexed by both the parties, it is clearly proved that initially plot bearing No.373 in Augusta Park, Sector 109 was allotted to the complainant and Plot Buyer’s Agreement was executed between the parties on 20.06.2007. The Opposite Parties in their written statement stated that in the year 2012 the complainant expressed his desire to change the said plot. Therefore, it is clearly proved that the Opposite Parties failed to deliver possession of the said plot to the complainant within a period of 3 years from the date of execution of the Agreement i.e. latest by 19.06.2010. It is also the admitted fact that Amendment Agreement in respect of the second or third allotment was never signed by the complainant. Moreover, the complainant clearly denied regarding acceptance of the second and third allotment, as alleged by the Opposite Parties. Even the complainant in para No.13 of his complaint has clearly stated that he was shocked to know that he was being offered possession of a different plot, he had booked. The complainant also took up the said issue with Opposite Party No.1 builder but they failed to provide any reason and in fact, when the complainant visited the office of the builder many times to take possession, each time their representative took him to many different locations of Sector 109 and pin pointed out the different location of the plot each time, which were far and apart by more than 0.5 to 0.75 km.  The complainant in para No.20 of his complaint has clearly stated that he came to know after visiting the project site after receipt of the possession letter of the above said project that other amenities/facilities, as promised were not even ready for possession and the builder was not in a position to give possession of the plot, in question, and much work was still to be done before giving the possession of the plot, as promised by the Opposite Parties at the time of advertisement and allotment. It was further stated that there were no boundary walls and the land was used for agriculture purpose and above all there was no security check on the entry points of the township nor a proper entry gate with a clean approach road is available. To prove this fact, the complainant has also placed on record current photographs of the said unit and project, which is annexed as Annexure C-7. A bare perusal of the said photographs annexed by the complainant clearly proved that project is not complete. The Opposite Parties cannot be forced to the complainant to accept alternative plot. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by the Opposite Parties, to prove that development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for Opposite Parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. It is relevant to mention here that the Opposite Parties in their intimation of possession letter in respect of plot No.109-MLU-13-334 dated 14.01.2015 (Annexure R-7) informed the complainant that “process of handing over of the plots in Sector 109, Mohali Hills shall commence within 60 days of this letter, as your plot is ready to be handed over for possession.” A bare perusal of the aforesaid letter clearly reveals that the Opposite Parties only intimated the complainant regarding process of handing over of possession which shall start within 60 days of this letter.  In the present case, according to the Agreement, the possession was to be delivered to the complainant within a maximum period of 3 years from the date of execution of the Agreement i.e. latest by 19.06.2010 but despite changing of second unit and, thereafter, third unit, the Opposite Parties failed to deliver possession of the plot, complete in all respects, to the complainant, despite receipt of the huge amount from him. The Opposite Parties relied upon the email dated 20.05.2013 (at page No.81 of the Opposite Parties documents) sent by the complainant to the Opposite Parties, which reads thus :-

“Ref, the relocation of my plot, I like plot no.109-AP-722-300 as suggested by you, please finalize this plot for me at the immediate.”

A bare perusal of the afore-extracted email sent by the complainant clearly reveals that the fact regarding relocation the second allotment was within his knowledge but it is not true that on the request of the complainant, the relocation was made because it is clearly proved that the complainant like the plot, as suggested by the Opposite Parties. It is also proved from the date of the aforesaid letter that the Opposite Parties failed to deliver possession of the first allotment till May, 2013 as the same was to be given in June, 2010.  Even at the time of arguments, Counsel for the complainant had drawn attention of this Commission regarding the entry points of the said Sector i.e. Sector 109, which were sealed/fenced by the Govt. of Punjab, Forest Department and the said fact was never disclosed to the complainant by the Opposite Parties. It is pertinent to note that a similar question of offer of possession of Mohali Hills, Sector 109 came up for consideration before this Commission in the case titled as Veena Mujral & Ors. Vs. M/s Emaar MGF Land Private Limited & Anr., Complaint case No.691 of 2016, decided on 08.03.2017, in which, certain RTI’s have been placed on record regarding Sector 109 by the complainant(s), which reads thus :-

“12.          The next question, that falls for consideration, is, as to whether,  offer of possession made by the Opposite Parties, to the complainants, vide letter dated 09.10.2014 (Annexure C-14), in respect of plot bearing No.109-MLU-116-300 in Block MLU situated at Sector 109,  Mohali Hills (Project), could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by the Opposite Parties, to prove that development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for Opposite Parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so.

                However, the main grouse of the complainants is that, despite receipt of the huge amount from them, actual physical possession thereof, was not offered to them, whereas, on the other hand, paper offer was made to them, vide letter of intimation of possession dated 09.10.2014 (Annexure C-14). According to the complainants, vide the aforesaid letter, the Opposite Parties illegally demanded an amount of Rs.11,70,244/- under various heads. After receipt of the aforesaid letter of intimation of possession, the complainants visited the site and found no development was there at the site at the time of intimation of possession. The Opposite Parties in their intimation of possession letter dated 09.10.2014 (Annexure C-14) informed the complainants that “process of handing over of the plots in Sector 109, Mohali Hills shall commence within 60 days of this letter, as your plot is ready to be handed over for possession.” A bare perusal of the aforesaid letter clearly reveals that the Opposite Parties only intimated the complainants regarding process of handing over of possession shall start within 60 days of this letter. The Opposite Parties have also placed on record  Partial Completion Certificate dated 16.10.2015 (Annexure R-4) to prove regarding the completion of the amenities at the site. It may be stated here that perusal of Partial Completion Certificate dated 16.10.2015 (Annexure R-4)  clearly goes to show that the same was issued subject to certain conditions i.e. the Opposite Parties shall abide by all the necessary permissions/sanctions/approvals from the PSPCL, PPCB, etc.   It is the duty of the Opposite Parties to comply with all the conditions, mentioned in the Partial Completion Certificate, before seeking final completion certificate. It is pertinent to note that a bare perusal of Partial Completion Certificate shows that the Opposite Party had applied for Partial Completion Certificate with the competent authority on 03.09.2015 and the said Partial Completion Certificate was issued by Greater Mohali Area Development Authority vide memo dated 16.10.2015. In the present case, according to the Agreement, the possession was to be delivered to the complainants within a maximum period of three years from the date of execution of the Agreement i.e. latest by 20.09.2010 but the Opposite Parties applied for Partial Completion Certificate on 03.09.2015 i.e. after the period of about five years stipulated. Even the complainants have drawn our attention to this Commission that the entry points of the said Sector i.e. Sector 109, in which, the plot is located, were sealed/fenced by the Govt. of Punjab, Forest Department, which fact was never disclosed to the complainants by the Opposite Parties. This fact is further fortified from the information obtained by similar located allottees under the Right to Information Act, 2005, from the Government of Punjab, Forest Department, in the matter, vide letter dated 05.05.2015 (at page No.122 of the complainant’s documents), which reads thus :-

“1.    The entry points of the project M/s Emaar MGF Land Ltd. (Mohali Hills) for Sector 109, 108 and 105 have been closed by the Forest Department by thorny fencing wire and digging the trenches.

2.     The above mentioned paths has been closed due to the reason that user agency has not obtained the requisite permission from Government of India for the use of land of Forest Department under FCA 1980 for the paths.

3.     The paths will be opened only after obtaining the final approval from Government of India.

4.     The Case for the paths of Sector 109 is pending adjudication since 03.07.2012 before the Civil Court, Kharar x x x x x”

This fact is further fortified from a letter dated 15.04.2015 (Annexure C-17) sent by the Opposite Parties to the Chief Administrator, GMADA, PUDA to take up the matter of sealing of entries of the project, in question, with the Govt. of Punjab i.e. regarding “illegal access” to their projects. Under these circumstances, a similar question, in a similar project Mohali Hills, Sector 109 came up for consideration before this Commission in the case titled as “Prabhujeev Singh Bajaj Vs. Emaar MGF Land Limited, Complaint case No.43 of 2016, decided on 29.06.2016, this Commission held as under :-

“31.        However, the main grouse of the complainant is that, despite relocation to the said units, even then, actual physical possession thereof, was not offered to him, whereas, on the other hand, paper offer was made to him, vide letters dated 25.08.2014 and 07.11.2014, because when he visited the site after receiving the said letters, to see development and basic amenities, the same were found missing and besides  that, all entry points of the project, had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/sanction from it. Thus, in these circumstances, the principal question, which goes to the root of the case, and falls for consideration, is, as to whether, offer of possession made by opposite parties no.1 and 2, to the complainant, vide letters dated 25.08.2014 and 07.11.2014, in respect of the relocated units, could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder/opposite parties no.1 and 2. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by opposite parties no.1 and 2, to prove that when offer was made to the complainant, in respect of the units, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for opposite parties no.1 and 2, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. Opposite parties no.1 and 2 were also required to produce on record, a copy of the Completion Certificate (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to do so. It is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer.

                Secondly, the complainant has placed on record, copies of the RTI Information, relating to the said project, in question. Vide RTI Information dated 29.04.2014 Annexure C-31, it was clearly intimated by Greater Mohali Area Development Authority (GMADA), that opposite parties no.1 and 2, had not even applied to them for commission of sewerage treatment plant, water supply, electricity etc. Not only this, it is further evident from  RTI Information dated 26.02.2015 Annexure C-30, issued by the Punjab State Power Corporation Limited (PSPCL), that no regular electricity connection has been released in the sector, in question, wherein the plots are situated. The said RTI Information goes unrebutted by opposite parties no.1 and 2. Not even a single document has been brought on record to prove that the information relating to non-existence of basic amenities, mentioned in the said RTI Information is false, or that the said information was fabricated by the complainant. Had the said information been false or fabricated, opposite parties no.1 and 2, could have obtained certificate from the said Authorities, to say that the same had not been supplied from their Department, but they (opposite parties no.1 and 2) failed to do so. Thus, it could safely be said that the complainant has proved his case, that opposite parties no.1 and 2 did not even obtain permission to provide basic amenities such as water, electricity etc., till  29.04.2014 or 26.02.2015, the dates when RTI information aforesaid, was issued by the Authorities concerned.

                Not only this, it is also an admitted case, that entry points of the project had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/ sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2), in paragraph No.26 of their written version. Not only this, the said fact is further corroborated from the letter dated 15.04.2015 Annexure-4 (at page 190 of the file), sent by opposite parties no.1 and 2, to the Chief Administrator, GMADA, requesting it to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by opposite parties no.1 and 2, in the said letter that “…….we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. This admission of the opposite parties no.1 and 2, in the letter dated 15.04.2015 written to the Chief Administrator, GAMDA, itself clearly goes to prove that even till that date (15.04.2015), they  were not in a position, to deliver possession of the plot(s) to their customers, including the complainant, in the said project, on account of reason that the entries thereof  had been sealed by the Forest Department, stating it to be an “illegal access through the Forest Strip”, permissions/sanction, whereof has not been obtained by them. Not even a single piece of evidence has been brought on record, to prove that the said entry points have been got reopened by opposite parties no.1 and 2, after having obtained permission from the Authorities concerned. If it is so, then it remained unclarified by opposite parties no.1 and 2, as to when entry points of the project were sealed, how could they offer possession of the units, to the allottees, including the complainant, in the year 2014.

                A plea was also taken by opposite parties no.1 and 2 that only recently the Forest Department has served notice on them, alleging illegal access created by them, through the Forest land. To the contrary, perusal of RTI Information dated 05.05.2015 Annexure C-28 (colly.) (at pages 120 to 127 of the file) issued by the Government of Punjab, reveals that a court case with regard to dispute between the Forest Department and opposite parties no.1 and 2, is pending litigation before the Civil Court Kharar, since 03.07.2012, as opposite parties no.1 and 2 have violated Sections 29,33 and 63 of the Indian Forest Act 1927 and have also violated the directions passed by the Hon'ble Supreme Court of India, vide order dated 12.12.1996. The said RTI Information also goes unrebutted by opposite parties no.1 and 2. Thus, the matter with regard to entry points aforesaid, in respect of the said sector, in dispute, was an old dispute, between the Forest Department and opposite parties no.1 and 2, as they had not taken permission from the Competent Authorities, which fact was not disclosed by them, in their written version, filed before this Commission. 

                In view of above, it is held that the act of opposite parties no.1 and 2, in offering paper possession of the units, in question, vide letters 25.08.2014 and 07.11.2014, in the absence of development work; basic amenities at the site; non-obtaining of completion certificate, and also entry points of the project being sealed/closed by the Forest Department, amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the offer of possession made by opposite parties no.1 and 2, vide letters dated 25.08.2014 and 07.11.2014 is nothing, but a paper possession, which is not sustainable, in the eyes of law.”

Aggrieved against the afore-extracted order passed by this Commission, the Opposite Parties filed First Appeal No.997 of 2016 in the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, wherein, the matter was settled between the parties on 08.11.2016, as per the Settlement Agreement.

                It is pertinent to note that the Opposite Parties  (Emaar MGF) filed appeal in another case i.e. First Appeal bearing No. 709 of 2016 titled as ‘Emaar MGF Land Limited Vs. Mandeep Saini’ before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, against the order of this Commission and the Hon'ble National Consumer Disputes Redressal Commission, New Delhi passed the order dated 14.09.2016, which reads thus :-

“x x x x xx

It is vehemently argued by Mr.Aditya Narain, learned counsel appearing for the Appellant that since the delay in delivery of possession of the flats in Sectors 104, 106, 108 and 109 is directly attributed to the sealing of the main access road to these Sectors by the Forest Department, one of the factors which weighed with the State Commission, falls within the ambit of force majeure clause in the agreement, there is no deficiency in service on the part of the Appellant in its alleged failure to deliver the possession of the subject flats in question by the committed time.  He thus prays that ex parte ad interim stay may to be continued. 

Prima facie, we are not convinced with the submission.  Hence, without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant is still not in a position to deliver possession of the fully developed flats with proper access, to the Complainants, we direct that the Appellant shall deposit in this Commission the principal amount(s) deposited by the Complainants with them, within 6 weeks from today.  On deposit of the said amount(s), it will be open to the Complainants to withdraw the said amount, on filing affidavits, undertaking to this Commission that they will refund the amount(s) withdrawn, if so directed at the time of final disposal of the Appeals.  Subject to the said deposits, the operation of the remaining directions, regarding interest, compensation, etc., in the impugned order shall remain stayed.

X x x x x xx x”

From the afore-extracted order, it is clearly proved that Counsel for the Opposite Parties admitted before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the delay in delivery of possession to these Sectors i.e. Sectors 104, 106, 108 & 109 was due to the sealing of main access road by the Forest Department. It is clearly proved that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant i.e. Emaar MGF Land Limited is still not in a position to deliver possession of the fully developed units with proper access, to the complainants i.e. till the passing of the afore-extracted order dated 14.09.2016.

                Not only this, the complainants have placed on record the information under RTI dated 14.12.2016 (Annexure C-32) alongwith their rejoinder, which was obtained by the other allottee from Department of Forests & Wildlife Preservation, Punjab, which reads thus :-

“As per record of this office, there is no NOC/approval has been issued by MoEF, Government of India regarding approach road under Forest Conservation Act, 1980 to Emaar MGF, Sector 109.”

In view of the aforesaid information under RTI, it is clearly proved that till 14.12.2016 there was no approval/NOC issued by MoEF, Government of India regarding approach road under Forest Conservation Act, 1980 to Sector 109 of the Opposite Parties. So, in view of all the aforesaid RTI informations annexed by the complainants, it is clearly proved that the possession offered by the Opposite Parties vide letter dated 09.10.2014 is only a paper possession and not more than that.”

                In view of the afore-extracted paragraph, it is clear that the possession offered by the Opposite Parties to the complainant on 14.01.2015 (Annexure R-7) is only a paper possession and not more than that.

9.           The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, in respect of third plot bearing No.109-MLU-13-334 in Sector 109, when the same was offered to him vide letter of intimation of possession dated 14.01.2015 (Annexure R-7), i.e. after a huge delay, and that too, in the absence of any force majeure circumstances. It may be stated here that non-delivery of possession of the plot/unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Parties that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon`ble National Commission, held as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar   MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

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

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

 

In the case titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi on 03.07.2015.’ The relevant portion of the judgment reads thus :-

“16.    Admittedly, appellants did not offer possession of the apartment within  the prescribed period, in terms of Clause 21 of the “Apartment Buyer’s Agreement”,  Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only  in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame  the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering  service but are also guilty of indulging into unfair trade practice. The appellants in  the present  case are enjoying the hard earned money  of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.”

The aforesaid appeal was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi with punitive damages. Aggrieved against the aforesaid order, Emaar MGF Land Limited filed Special Leave to Appeal (C) No(s). 32492/2015 before the Hon’ble Supreme Court of India and the same was also dismissed.

                   In view of the above, it is held that since there was a material violation on the part of the Opposite Parties, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainant was at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

10.          The next question, that falls for consideration, is, as to within which period, the delivery of the plot/unit, was to be given to the complainant. It is clearly proved from Clause 8 of the Agreement that possession of the unit was to be delivered to the complainant within a maximum period of three years from the date of execution of the Agreement i.e. latest by 19.06.2010 and not more than that. However, the Opposite Parties failed to deliver possession of the unit to the complainant, complete in all respects, within the stipulated time frame as mentioned in the Agreement and only sent a letter of intimation of possession dated 14.01.2015 (Annexure R-7) to the complainant in respect of third allotment i.e. plot No. 109-MLU-13-334, which is also a paper possession.

11.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.34,46,604/-, deposited by him. It is evident from the statement of account (Annexure R-9) that the complainant deposited the total amount of Rs.34,46,604/- in respect of the plot, in question.  It is an admitted fact that the  Opposite Parties are unable to deliver  possession of the unit, in question, complete in all respects, within the stipulated timeframe, as mentioned in the Agreement and the possession offered to the complainant vide letter dated 14.01.2015 in respect of other plot, is only a paper possession and not more than that. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit, in question. 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.

12.          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.34,46,604/-, 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 @15% p.a.) as per Clause 3 of the Agreement, for the period of delay in making payment of installments.  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 them, to the tune of Rs.34,46,604/-alongwith interest @15% p.a. compounded, from the respective dates of deposits till realization. 

13.          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 their (Opposite Parties) case, that they were ready with possession of the unit/plot, to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and are 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 himself is rescinding the contract, as such, he 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.

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

15.          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.34,46,604/-, to  the complainant, alongwith interest compounded @ 15% p.a., from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest compounded     @18% p.a., instead of interest compounded @ 15% p.a., from the respective dates of deposits, till realization, and interest compounded @15% p.a., on the  amounts mentioned at Clause (ii) & (iii), from the date of filing the complaint, till realization.

 

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

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

Pronounced.

March 31, 2017.                              Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

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