Chandigarh

StateCommission

CC/34/2016

Mrs. Satwant Kaur Sra - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Mohan Singh Ghuman,Adv.

30 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	34 of 2016
Date of Institution	:	28.01.2016
Date of Decision	:	30.05.2016

 

Mrs. Satwant Kaur SRA, Aged 58 years w/o Sh. Mohinder Singh Sra r/o 10, Suthon Way, Houselaw, Middlesex, TWSOJA, United Kingdom.

 

Local Address :

 

Mrs. Satwant Kaur Sra c/o J.S.Kesar (IAS), Retd., House No.1551, Sector 34, Chandigarh.

 

……Complainant

V e r s u s

Emaar MGF Land Limited (Emaar MGF), through its  Manager, Ist Floor, SCO No.120-122, Sector 17-C, Chandigarh – 160017.  

                                                    .... Opposite Party

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh. Mohan Singh Ghuman, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainant purchased flat No.L-3/403 measuring super area of 1930 sq. ft. from the Opposite Party in its project situated in ‘THE VIEWS’ at Mohali Hills, Sector 105, SAS Nagar, Mohali. Copy of allotment letter dated 22.01.2010 is Annexure C-1. It was stated that the complainant paid consideration amount of Rs.60,93,509/- vide receipts (Annexure C-2 colly.). Thereafter, Unit Buyers Agreement was executed between the parties on 25.02.2010 (Annexure C-3). After payment of the huge amount, the complainant visited the site and found that there was no significant development of the project area. It was further stated that the complainant approached the Opposite Party many times and wrote several letters for delivery of possession of the said unit but to no avail. Copies of complainant’s letter and Opposite Party’s reply are Annexure C-4 (Colly.). It was further stated that the Opposite Party also did not revert for refund of money to the complainant within 10-15 days, as intimated vide letter dated 24.11.2015 (Annexure C-5). It was further stated that as per Clause 21.1 of the Agreement, possession was to be delivered to the complainant within a period of 36 months from the date of allotment i.e. 22.01.2010 and this period had already expired on 22.01.2013. Due to non-delivery of possession of the unit, in question, the complainant requested the Opposite Party to refund her money but it did not pay any heed. It was further stated that the aforesaid acts, on the part of the Opposite Party, 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 Party, in its written version, has taken objection regarding arbitration clause in the Agreement, and also it 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 further stated that the complainant is not a consumer, as envisaged under the Consumer Protection Act, 1986, as she is citizen of England and has no intention of settling at Chandigarh/India and purchased the property/flat for speculation purposes only. It was further stated that the Opposite Party offered relocation to the complainant to another tower, wherein, the construction was at advanced stage but she refused to accept it. It was further stated  that as per Clause 21.1 of the Agreement, the Opposite Party had ‘proposed’ to handover possession of the unit within 36 months from the allotment with a further grace period of 90 days for applying and obtaining Occupation Certificate. It was further stated that the term “proposes” duly indicated that there was no definitive commitment to hand over possession within 36 months, as time was not the essence of the Agreement and as far as possession is concerned, the complainant had voluntarily accepted the alleged delay, as her interest was safeguarded by the compensation clause in the Agreement and the Opposite Party had committed to bear penalty for delayed compensation, if any, beyond the time frame stipulated under the Agreement, at the time of registration of the unit. It was further stated that the complaint is barred by limitation, as the consumer complaint can be filed within 2 years from the date of cause of action and in the present case, the cause of action, if any, arose to the complainant for seeking possession/refund arose after 3 years from the date of Buyer’s Agreement, as such, the cause of action arose on 25.01.2013 and the present complaint now being filed is barred by limitation. It was further stated that the complainant is bound by the terms and conditions of the Agreement and in case of seeking refund, forfeiture clause would be applicable. It was further stated that the Agreement was executed at Mohali, property is situated at Mohali and the registered office of the Opposite Party is situated at Delhi, as such, this Commission has no territorial jurisdiction to try and entertain the complaint. It was further stated that this Commission has no pecuniary jurisdiction to try and entertain the complaint. It was averred that the complainant was allotted unit No. TVM-L3-F04-403 vide letter dated 22.01.2010 in the project ‘The Views’ at Mohali Hills and Buyer’s Agreement was also executed between the parties on 25.02.2010. It was further stated that as per the Agreement, the Company had proposed to hand over the unit within 36 months from the date of allotment plus a grace period of 90 days. It was further averred that the Opposite Party has already completed the structure work of the tower, wherein, the flat of the complainant situated and presently the final finishing works are going on in the said tower. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.

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

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.           Admittedly, the complainant was allotted unit/apartment No.L3/F04/403 having approximate super area of 1930 sq. ft. in the residential project situated in “The Views” at Mohali Hills in Sector 105, SAS Nagar, District Mohali, Punjab vide allotment letter dated 22.01.2010 (Annexure C-1) and as per the allotment letter, the total consideration of the unit, in question, was Rs.62,72,558/-, out of which, the complainant paid an amount of Rs.60,93,509/-, as is evident from statement of account (Annexure R-1). It is also the admitted fact that Unit Buyer’s Agreement was executed between the parties, on 25.02.2010 (Annexure C-3). As per Clause 21.1 of the Agreement, possession of the said unit was to be delivered within a period of 36 months from the date of allotment and the said period expired on 25.02.2013 but the Opposite Party after receipt of the huge amount from the complainant neither delivered possession of the unit nor refunded the amount to her, despite repeated requests.  

7.           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 Arbitration and Conciliation Act 1996 Act (in short 1996 Act), this Commission has jurisdiction to entertain the consumer complaint or not. It may be stated here that under similar circumstances, in a case titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, this Commission elaborately dealt with this objection noting down the background in which 1986 Act was enacted; the United Nations Draft Guidelines to protect the interest of consumers by passing Resolution No.39/248, to which our country is signatory; objectives of those guidelines; the fact that qua consumers, 1986 Act is a special legislation; the judgment of Hon’ble Supreme Court of India in Fair Air Engineers (P) Ltd. v. N.K. Modi (1996) 6 SCC 385, Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305. In Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha’s case (supra), it was specifically observed that where two different redressal agencies/Acts have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. In Abha Arora Vs. Puma Realtors Pvt. Ltd. and another’s case (supra), this Commission in Para 19 held as under:-

“19. It was specifically observed that even in those cases, where two different redressal Agencies/Acts, have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. Taking note of a weak position, in which a consumer is set against multinational companies and other big producers, it was said by the Hon’ble Supreme Court of India in a case titled as United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),that, where there is any ambiguity in understanding the meaning of provision of law, or where two interpretations are possible, one beneficial to the consumer should be accepted. The same view was reiterated in LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC).”

8.        This Commission after dealing with the unamended/amended provisions of Section 8 of 1996 Act and Section 3 of 1986 Act, and in view of law laid down in judgments of Hon’ble Supreme Court of India in case titled National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy  &  anr., I (2012) CPJ 1 (SC) and Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, Civil Appeal No.20923 of 2013 and judgments of National Commission in DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013; Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited’s & Ors., Consumer Complaint No.427 of 2014 decided on 8.6.2015 and Mahindra Holidays & Resorts India Ltd. Vs. Adnan Samoon Rassiawala & 6 Ors., First Appeal No. 127 of 2016, decided on 18.03.2016, came to the conclusion that as held by the Hon’ble Supreme Court of India and also by the National Commission in a large number of cases, Section 3 of 1986 Act provides for an additional remedy available to a consumer and the said remedy is also not in derogation to any other Act. Further the remedy under the 1986 Act is cost effective and much speedier than the proceedings before the Arbitrator. Referring the matter to the Arbitrator would defeat the very purpose of General Assembly Resolution No.39/248 and the provisions of 1986 Act and in view of above, the plea raised by Counsel for Opposite Party No.1 (in that case), was rejected. The ratio of the aforesaid judgments is squarely applicable to the facts of the instant case. Similar view was reiterated by this Commission in in Praveen Kumar Arora and another Vs. Emaar MGF Land Limited, consumer complaint No.198 of 2015, decided on 04.04.2016, by further holding as under:-

“20. 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. In the present case, the complainants have spent their entire life earnings to purchase a unit, in a housing project, launched by the opposite party. It was their hope that they will live therein. However, their hopes were shattered, when despite making payment of entire amount towards price, they failed to get possession of a unit, 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.

21. In view of the above, the argument raised by Counsel for 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”.

9.           Further this Commission in case titled ‘Sukhjinder Singh Vs. M/s IREO Fiveriver Pvt. Ltd.’, Complaint Case No.278 of 2015 decided on 18.04.2016, held as under:-

“Not only as above, execution of judgment/decree passed by the Consumer Foras is very easy and less time consuming. Invariably, in all the judgments passed, between one to three months’ time, is granted to the judgment debtors(s) to discharge liability. If it is not so done, and the order is not stayed in the meantime by the Higher Fora, two options are available with the complainant/decree holder. Section 25 of 1986 Act provides the procedure to enforce orders by the Consumer Foras. In Sector 25 (3), it is provided that where any amount is due from any person, under an order passed by any Consumer Fora, the concerned Consumer Fora, on an application moved by the decree holder, may issue a certificate to the Collector of the District, to recover the said amount, by way of land revenue, in terms of Section 72 of the Punjab Land Revenue Act, 1887. The said provision is also very stringent. The Collector is supposed to attach the holding of the judgment debtors to take the said property under his own management and control. The Collector is further supposed to manage the said property and raise all rents and profits accruing therefrom to the exclusion of the defaulter, until the decree is satisfied. The above procedure will consume at the maximum four to six months, for realization of the amount awarded. Further option is also available to a complainant/decree holder, to move an application under Section 27 of 1986 Act, which provides that where a trader or a person against whom, a complaint was made, fails or omits to comply with the order passed by the Consumer Fora, such party would entail award of punishment of imprisonment for a term, which shall not be less than one month, but may extend to three years, or with fine, which shall not be less than Rs.2,000/-, and may be extended upto Rs.10,000/-, or both. This provision is very effective, as and when application is moved under Section 27 of 1986 Act, for fear of imprisonment, it is seen that immediately the judgment debtor(s) make an attempt to comply with the order passed by the Consumer Foras. Whereas, to the contrary Section 36 of 1996 Act, provides that award shall be enforced, in accordance with the provisions of the Code of Civil Procedure 1908, in the same manner, as if it was a decree of a Court. Such a procedure is very costly and time consuming. Executing a decree would virtually mean fighting one more litigation, in a Court, to get enforcement of the award. If such a procedure is adopted, it will defeat the very purpose and spirit of 1986 Act. Accordingly, in this view of the matter and also in the face of ratio of judgments, referred to above, the arguments raised by Counsel for the opposite party, stands rejected.”   

 

10.        It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

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

 

11.        In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Party, stands rejected.

12.          As regards objection raised by the Opposite Party in its written statement, with regard to pecuniary jurisdiction, it (Opposite Party) has failed to state as to how this Commission has no pecuniary jurisdiction to try this complaint. It may be stated here, that the complainant has sought refund of Rs.60,93,509/-, paid by her, towards price of the said unit, alongwith interest @12% p.a ; compensation for delay in possession i.e. Rs.4,05,300/-; compensation to the tune of Rs.3 lacs, for harassment & mental agony and cost of litigation, to the tune of Rs.1,00,000/-, aggregate value whereof [excluding the interest claimed], if clubbed together, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint, for the reasons given hereinafter.

              The question, that arises for consideration, is, as to whether, interest @12% p.a, claimed by the complainant, on the deposited amount of Rs.60,93,509/-, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission.  In Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/- it (amount) will exceed Rs.20 lacs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

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

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

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

13.          Another frivolous objection was taken by Counsel for the Opposite Party, by stating that the unit, in question, is situated at Mohali, Agreement was executed at Mohali, and registered office of the Opposite Party situated at Delhi, as such, this Commission has no territorial Jurisdiction to entertain and decide the complaint.

              According to Section 17 of the Act, a consumer complaint can be filed, by the complainant(s), before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction, whereof a part of cause of action arose to them. In the instant case, Unit Buyer’s Agreement, in respect of the unit bearing No.TVM L3-F04-403, Tower No. L3, in the project ‘The Views’, was executed, between the complainant and the Opposite Party, at Chandigarh on  25.02.2010 (Annexure C-3).  Not only this, perusal of record reveals that the allotment letter dated 22.01.2010 (Annexure C-1) and the receipts (Annexure C-2 colly.), were sent by Chandigarh office of the Opposite Party, as the same had the address “Emaar MGF Land Limited, SCO 120-122, 1^st floor, Sector 17-C, Chandigarh-160017”. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by Counsel for the Opposite Party, also stands rejected.

14.          To defeat claim of the complainant, another objection raised by the Opposite Party was that the complainant did not fall within the definition of “Consumer”, as defined in the Consumer Protection Act, 1986, as the complainant is citizen of England and she has no intention of settling at Chandigarh/India, as such, she purchased the unit for speculation purposes. After going through the documents and record of the case, we do not find any merit in the contention of the Opposite Party because the complainant has specifically mentioned in his rejoinder that she wanted to purchase the flat from the Opposite Party for her living/stay in India during her periodical visits to her country of origin and in no way is involved in alleged speculation or business. So, it is clearly proved that the complainant purchased the said unit for residential purpose only.

            It may be stated here that there is nothing, on the record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Party, 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 Hon’ble 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 unit, in question, was purchased by the complainant for speculative purposes. Such an objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected. 

15.          The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was barred by time or not. The Counsel for the Opposite Party stated that the complaint is time barred, having been filed beyond two years of alleged cause of action, which allegedly accrued to the complainant on 25.01.2013 because in the present case, cause of action, if any, arose to the complainant for seeking possession/refund arose after three years from the date of Buyer’s Agreement and, as such, the cause of action arose on 25.01.2013 itself and the complaint now being filed by the complainant in the year 2016 is barred by limitation. After going through the record of the case, we are not impressed with the contention of the Counsel for the Opposite Party. No doubt, the complaint filed by the complainant on 28.01.2016. It may be stated here, that neither possession of the unit was delivered to the complainant, by the stipulated date, after receipt of the huge amount from her nor the deposited amount was refunded to her. As such, 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 of the Counsel for the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.

16.          As regards objection raised by the Opposite Party, in its written statement, that as per Clause 21.1 of the Buyer’s Agreement, the Opposite Party had “proposed” to hand over possession of the unit within a period of 36 months from the allotment with a further grace period of 90 days for applying and obtaining occupation certificate. It was further stated that the term ‘proposes’ duly indicated that there was no definitive commitment to hand over possession within 36 months as time was not the essence of the Agreement.  In the instant case, it is evident from Clause 21.1 of the Unit Buyer's Agreement dated 25.02.2010,  the Opposite Party was to hand over possession of the said unit, in favour of the complainant, within a period of 36 months from the date of allotment i.e. latest by February,  2013. Thus, once a specific period of 36 months was mentioned in the Agreement, the Opposite Party was bound to deliver possession in the said 36 months i.e. latest by February, 2013 and not beyond that.  It is not the case of the Opposite Party that they encounted any force majeure circumstances, as no document has been placed on record in this regard. The time was, thus, unequivocally made the essence of contract. Therefore, the  objection taken by the Opposite Party, in its written statement, being devoid of merit, must fail, and the same stands rejected.

17.          The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainant. According to Clause 21.1 of the  Unit Buyer’s Agreement dated 25.02.2010 (Annexure C-3), subject to force majeure conditions and reasons, beyond the control of the Company, it was to deliver possession of the unit, in question, within a period of 36 months, from the date of allotment. It is, thus, evident, from this Clause, that the Opposite Party was required to deliver possession of the unit, in question, in favour of  the complainant,  within the maximum period of 36 months, from the date of allotment dated 22.01.2010 and the said period has already expired in February, 2013. However, till the date of filing of the complaint i.e. 28.01.2016, the Opposite Party neither delivered possession of the unit to the complainant, despite repeated requests. Moreover,  the Opposite Party already received a huge amount of Rs.60,93,509/-, towards the said unit, as is evident from the statement of account (Annexure R-1). By making a misleading statement, that possession of the unit, was to be delivered within a period of 36 months, from the date of the allotment, the Opposite Party failed to abide the commitments, as such, it was not only deficient, in rendering service, but also indulged into unfair trade practice.

18.          The next question, that falls for consideration, is, as to whether, the complainant is entitled for refund of the amount of Rs.60,93,509/-, as claimed by her,  towards the unit, in question. It is, no doubt, true that the Opposite Party received an amount of Rs.60,93,509/-, as is evident from the statement of account (Annexure R-1). The Unit Buyer’s Agreement was executed between the parties on 25.02.2010 and possession of the unit was to be delivered within a period of 36 months i.e. latest by February, 2013 from the date of allotment and about 6 years had passed from the date of allotment but the Opposite Party failed to deliver physical possession of the unit, in question, to the complainant,   within   the  stipulated period.  The Opposite

Party in  para No.4 of its written statement clearly stated that the Company has already completed the structure works of tower, wherein, the flat of the complainant is situated and presently, the final finishing works are going on in the said tower. Even the Opposite Party had no right, to retain the hard earned money of the complainant, without rendering her, any service. Therefore, it is clearly proved that the Opposite Party was not in a position to deliver possession of the unit to the complainant.  In our considered opinion, the complainant is entitled to refund of amount of Rs.60,93,509/-, deposited by her.

              At the time of arguments, Counsel for the Opposite Party stated that when complainant sought refund of the amount, forfeiture clause is applicable upon the complainant. In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, holding as under:-

 

 “It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment,  with  grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

 

23.    As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants,  started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and  respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked,  then we fail to understand as to how  before completing the construction appellants demanded the aforesaid amount.  This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment,  subject to certain payments.

24.    Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from  the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period.  Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and  part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013,  which was against the terms of the Agreement.  The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013.  Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25.    The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

It was clearly stated by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), that when the promoter has violated 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. Moreover, the Opposite Party in its written statement clearly stated the Company has already completed the structure works of tower, wherein, the flat of the complainant is situated and presently, the final finishing works are going on in the said tower.   It is clearly proved that the Opposite Party has not fulfilled its part of the Agreement and failed to develop the infrastructure alongwith other amenities and failed to deliver possession of the unit to the complainant, within the stipulated period, as mentioned in the Agreement. So, it is clearly proved that the Opposite Party is, thus, in breach of its part of the obligation and is deficient in providing services even after receipt of the huge amount and, as such, the Opposite Party is not entitled to forfeit any amount, and refund the deposited amount to the complainant. 

19.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount of Rs.60,93,509/-, if so, at what rate. The complainant was deprived of her hard earned money, to the tune of Rs.60,93,509/-, on the basis of misleading information, given by the Opposite Party, that it would be handed over legal physical possession of the unit, in question, within a period of 36 months from the date of allotment i.e. by February, 2013. However, the Opposite Party neither delivered physical possession of the unit to the complainant, despite receipt of the huge           amount, after completion of about 3 years even after the expiry of stipulated period. The complainant was, thus, caused financial loss.  Hard earned money, deposited by the complainant, towards price of unit, in question, was utilized by the Opposite Party, for a number of years. Had this amount been deposited by the complainant, in some bank, or had she invested the same, in some business, she would have earned handsome returns thereon. It is therefore, held that the Opposite Party, by neither delivering possession of the unit, by the stipulated date, nor refunding the amount to the complainant, was not only deficient, in rendering service, but also indulged into unfair trade practice. No doubt, as per Clause 20.1 of the Unit Buyer’s Agreement, the Opposite Party was charging interest @15% per annum compounded from the complainant. Under these circumstances, in our considered opinion, if  interest  @12% P.A., on the amount deposited by the complainant, from the respective dates of deposits, is granted, that will serve the ends of justice.  

20.          The next question, that falls for consideration, is, as to whether, the  complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment caused to her. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant(s). The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainant suffered a lot of mental agony and harassment, at the hands of the Opposite Party, for a number of years, as it neither delivered physical possession of unit to her nor refunded the amount to her, despite repeated requests. The complainant purchased the        unit, with the hope to have a roof over her head, by raising construction thereon, but her hopes were dashed to the ground. The complainant, thus, underwent a lot of mental agony and harassment, on account of the acts of omission and commission of the Opposite Party. Compensation to the tune of Rs.3,00,000/- if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

21.          Since we are refunding the whole deposited amount to the complainant, therefore, she is not entitled to claim compensation for delay in possession, as interest awarded @12% p.a. will take care of the relief qua delayed possession.

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

23.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-

1. To refund the amount Rs.60,93,509/-, to  the complainant, alongwith interest @ 12% per annum, 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.3,00,000/- for causing mental agony and physical 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 @15 % P.A., instead of interest @ 12% P.A., from the respective dates of deposits, till realization, and interest @12% P.A., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

 

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

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

Pronounced.

May   30, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [DEV RAJ]

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER