Chandigarh

StateCommission

CC/245/2019

Pradeep Khanna - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Savinder Singh Gill, Hoshiar Chand Adv.

18 May 2020

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	245 of 2019
Date of Institution	:	04.11.2019
Date of Decision	:	18.05.2020

 

Pradeep Khanna S/o Sh.Shiv Narain Khanna, R/o 691 Orchard Lane, Franklin Lakes, NJ-07417, USA.

……Complainant

V e r s u s

1. Emaar MGF Land Limited, Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, through its Managing Director, Sh.Hadi Mohd Taher Badri and Chief Executive Officer Sh.Prashant Gupta.
2. Sh. Hadi Mohd Taher Badri, Managing Director of Emaar MGF Land Limited, having its Office at Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali-160062.
3. Sh.Prashant Gupta, Chief Executive Officer of Emaar MGF Land Limited, R/o G-1, Fine Home Apartments, Mayur Vihar, Phase-1, Delhi-110092.

….Opposite Parties

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

 

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                      MR. RAJESH K. ARYA, MEMBER.

 

Argued by:    Sh.Savinder Singh Gill, Advocate for the complainant.

Sh.Shobit Phutela, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The above captioned complaint has been instituted seeking directions to the opposite parties, to refund the amount of Rs.49,32,544/- paid by the complainant towards purchase of flat bearing no.TVM F1-F05-504, measuring 1750 square feet, in the project named “The Views”, Sector 105, SAS Nagar, Mohali. Total sale consideration of the unit was fixed at Rs.53,17,750/-. It is the case of the complainant that despite the fact that he has paid substantial amount of Rs.49,32,544/- i.e. more than 90% of the total sale consideration, yet, possession of the said unit was not delivered to him by 12.10.2009 i.e. within a period of 36 months from the date of allotment (13.10.2006, Annexure C-1) as envisaged under Clause 21.1 of the agreement dated 30.01.2008 (Annexure C-4). It has been stated that even the early payment rebate promised to be paid to the complainant, was not paid by the opposite parties.  Number of requests made by the complainant, in the matter, did not yield any result.

                   By stating that the aforesaid act and conduct of the opposite parties in not handing over possession of the unit in question, by the committed date, amount to deficiency in providing service, negligence and adoption of unfair trade practice, the complainant has filed the present case seeking refund of amount paid alongwith interest and also to pay litigation expenses.

2.           His claim has been contested by the opposite parties, on numerous grounds, inter alia, that in the face of existence of provision to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain this consumer complaint; that the complainant being NRI did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act; that this Commission did not vest with pecuniary and territorial jurisdiction; that the project in question has been registered under RERA, as such, jurisdiction of this Commission is barred; that the complaint filed is beyond limitation; that only the civil court has jurisdiction to entertain this complaint; that for any delay in offering possession, stipulated penalty has been provided in the agreement, which safeguarded the interest of the complainant; that the cost of the unit in question is Rs.57,16,513/- and not Rs.53,17,750/- as stated by the complainant in his complaint; that the complainant was defaulter in making payment, as a result whereof, number of reminders were sent to him starting from 27.10.2011 followed by notice of cancellation of allotment of the unit; that when at one point of time, he did not make payment of the remaining amount, allotment of the unit was cancelled vide letter dated 13.08.2012 (at page 47 of the paper book) and it was only thereafter, he made payment of Rs.20 lacs vide cheque dated 31.10.2012; that last payment was demanded from the complainant on 07.02.2018, which was paid by him on 12.02.2018; that still the complainant is liable to make remaining payment of Rs.2,91,388/-; that because there was breach of terms and conditions on the part of the complainant in not making timely payments and at the same time,  now he is rescinding the contract, as such, the opposite parties are entitled to forfeit the earnest money and also other miscellaneous charges; that the names of opposite parties no.2 and 3 need to be deleted from the array of parties, as they are not running affairs of the Company and therefore the complaint is bad for mis-joinder of parties.
3.           On merits, purchase of the unit by the complainant; payments made as mentioned in the complaint; execution of agreement; and that there was delay in offering possession of the unit has not been disputed by the opposite parties. It has been stated that the project of the opposite parties is exempted from the provisions of PAPR Act (Punjab Apartment and Property Regulation Act, 1995); possession of the unit in question was offered to the complainant vide letter dated 20.12.2019 (Annexure OP-5), after obtaining partial completion and occupation certificates but he failed to take over the same. It has been pleaded that an amount of Rs.5,22,123/- also stood credited in the account of the complainant maintained by the opposite parties, towards delay in offering possession of the unit in question. Prayer has been made to dismiss the complaint with costs.
4.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, they have adduced evidence by way of affidavits and also produced numerous documents.
5.           We have heard the contesting parties and have gone through record of the case, very carefully.
6.           From the pleadings of parties and other material available on the record, following points have emerged for consideration in this case: -
   1. Whether the arbitration clause contained in the agreement and also if the project in question has been got registered under RERA, bars the jurisdiction of this Commission?
   2. Whether this Commission has pecuniary and territorial jurisdiction to entertain this complaint?
   3. Whether the complainant falls under the definition of consumer?
   4. Whether the complainant is bound to take over possession offered after an inordinate delay of more than about 10 years from the stipulated date?
   5. Whether the complaint filed is within limitation?
   6. Whether the complainant is entitled to get refund of the amount deposited and if yes, at what rate of interest?
   7. Whether forfeiture clause will be applicable to the present case?
   8. Whether this complaint is bad for mis-joinder of parties i.e. opposite parties no.2 and 3?

 

7.           First of all, coming to the objection raised with regard to jurisdiction of this Commission in the face of existence of Arbitration clause contained in the agreement, it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the opposite parties in this regard stands rejected.
8.           The next question which needs consideration is with regard to pecuniary jurisdiction, it may be stated here that if the total value of the unit agreed to be purchased by the complainant; plus interest claimed @10% p.a. on the deposited amount, are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint. Objection taken in this regard stands rejected.
9.           Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that the agreement (Annexure C-4) was executed between the parties at Chandigarh office of the opposite parties i.e. SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh. This address of Chandigarh Office of the opposite parties is also found on number of documents placed on record i.e. payment receipts (Annexure C-2 colly.), letter dated 15.10.2012 (Annexure C-5) and payment request letters (Annexure OP-6 colly.) placed on record by the opposite parties only, meaning thereby that the Company was actually and voluntarily residing and carrying on business from its branch office at Chandigarh and personally work for gain hereat. As such, it is held that this Commission at Chandigarh has territorial jurisdiction to entertain this complaint. Objection taken in this regard, stands rejected.
10.           As far as objection taken to the effect that the complainant did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainant has purchased the unit/flat in question to indulge in ‘purchase and sale of flats’ as was held by the Hon’ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge that onus, hence we hold that the complainant is a consumer as defined under Section 2(1)(d) of the Act. Furthermore, the mere fact that the complainant is an NRI and residing in USA, is no ground to snub him out of the purview of ‘consumer’. No law debars NRI and any other person sitting abroad, with roots in India, to purchase a residential property in India for his/her personal use. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. Each NRI wants a house in India. The complainant is an independent person and can purchase any house in India, in his own name. Similar view was expressed by the Hon’ble National Commission in Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016. Objection taken in this regard is rejected.
11.           There is no dispute with regard to the fact that against total sale consideration of Rs.53,17,750/- (as is evident from Schedule of Payment Annexure-II forming part of the agreement), the complainant paid an amount of Rs.49,32,544/- i.e. more than 90% of the total sale consideration, for the period between 11.08.2006 to 12.02.2018, to the opposite parties towards purchase of the said unit. Despite the fact that it was in a clear-cut manner, committed by the opposite parties vide Clause 21.1 of the agreement that possession of the unit will be delivered within a period of 36 months from the date of allotment i.e. on or before 12.10.2009 (date of allotment being 13.10.2006), yet, the opposite parties miserably failed to do so and on the other hand, possession was offered to the complainant on 20.12.2019 i.e. after an inordinate delay of more than 10 (ten) years. The opposite parties have not disputed the said inordinate delay in offering possession of the unit in question to the complainant. However, without giving any justification of such an inordinate delay; to wriggle out of the situation, it has been simply stated in the reply that the Company is ready to compensate the complainant for the period of delay, as per terms and conditions of the agreement and that part amount of Rs.5,22,123/- already stood credited in his account, maintained in respect of the unit in question.  
12.           At the time of arguments also, we asked the Counsel for the opposite parties to apprise this Commission, as to why such a huge delay of more than 10 years took place in offering possession of the unit in question; he was having no answer and said that because the possession so offered was a genuine one, though belatedly, the complainant is bound to take over the same. On the other hand, Counsel for the complainant contended that since there has been an inordinate delay in the matter, the complainant was not bound to take over possession of the unit and is entitled to seek refund of the amount paid.

                   It may be stated here that in the written reply filed, not even a single cogent and convincing reason has been assigned by the opposite parties, as to what stopped them, to complete construction at the project site and deliver possession of the unit in question by the stipulated date. Even this much has not been proved, as to whether, when the project in question had been launched and units were sold therein to the general public in the year 2006, the opposite parties had obtained necessary permissions/ approvals from the competent authorities. This Commission, vide order dated 08.11.2019, directed the opposite parties to produce on record various documents, in relation to the said project i.e. Registration Certificate of the project with the competent authority;  copy of requisite Licence issued by the Competent Authority; Change of Land Use (CLU) pertaining to the project in question; Letter of Intent (LOI); copy of approved site plan of the project; copy of completion certificate; latest photographs of the site/unit in dispute etc.,  but they miserably failed to do so. The action of non-placing on record the said documents, attracts adverse inference against the opposite parties that the project in question had been launched and units were sold therein, without obtaining approvals/sanctions from the competent authorities.

13.           Under above circumstances, the moot question which needs consideration is, as to whether, the complainant was bound to take over possession of the unit in question, offered after an inordinate delay of more than  10 (ten) years. It may be stated here that a similar question as to whether an allottee is obliged to take possession, in case there is a delay in offering the same, fell for determination before the Hon’ble National Commission in Govindan Raghavan Vs. Pioneer Urban Land And Infrastructure Ltd., Consumer Case No. 239 of 2017, decided on 23 Oct 2018, wherein while negating the plea taken by the builder, refund of the amount paid was ordered, by holding as under:-

“16.    The learned counsel for the OP submits that in CC No.239 of 2017, not only the construction of the apartment has already been completed, even the requisite Occupancy Certificate has been obtained on 23.07.2018 and therefore, the complainant should now take possession of the allotted flat instead of insisting upon the refund of the amount paid by him towards the cost of the flat.  The learned counsel for the said complainant states on instructions that the complainant is no more interested in taking possession of the allotted flat and wants refund of the amount paid by him alongwith appropriate compensation.  Considering that the last date for completion of the construction expired about three years before the Occupancy Certificate was obtained, and in fact, it had expired more than one year before this complaint was instituted, the complainant, in my opinion, cannot be compelled to accept possession of the flat at this belated stage.”

 

Feeling aggrieved, against the order dated 23.10.2018, the builder went in Civil Appeal No.12238 of 2018 (Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan), before the Hon’ble Supreme Court, which was dismissed by it vide order dated 02.04.2019, while holding as under:-

“9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired…….”

14.           Similar view had been expressed by the Hon’ble Supreme Court of India in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. Because in the present case, there is an inordinate delay of more than  10 (ten) years in offering possession of the unit in question, as such, in view of settled law that non-delivery of possession of plots/units in a developed project by the promised date (irrespective of the fact that occupation and partial completion certificates have been obtained from the competent authorities) is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid, if we order refund of the amount paid alongwith suitable interest that will meet the ends of justice.  The complainant is therefore held entitled to get refund of the amount paid alongwith interest, from the respective dates of deposits till realization.
15.           To defeat the claim of the complainant, it has been vehemently contended by Counsel for the opposite parties, that the complainant was defaulter in making payment, as a result whereof, number of reminders were sent to him starting from 27.10.2011 to 21.12.2011 followed by cancellation of allotment of the unit in question, vide letter dated 13.08.2012, and such an act amounted to breach of terms and conditions of the agreement. On the other hand, Counsel for the complainant contended that the complainant was right in stopping the payment, when he did not see any construction at the project site and at the same time possession was also not offered by the stipulated date; though thereafter he made payment of substantial amount, referred to above, to avoid cancellation of the unit in question. We fully agree with the contentions raised by Counsel for the complainant for the reasons to be recorded hereinafter.

                   Perusal of payment schedule- Annexure II (forming part of the agreement) reveals that the complainant was required to make payment of Rs.53,17,750/-. On booking, he was required to make payment of Rs.7 lacs; thereafter an amount of Rs.2,95,050/- within a period of 45 days of booking; and Rs.4,97,525/- within a period of 90 days of booking; Rs.4,97,525/- on start of construction; and the remaining amount was to be paid as per stages of construction. As stated above, as per Clause 21.1 of the agreement, possession of the said unit was to be delivered to the complainant within a period of 36 months from the date of allotment (13.10.2006) i.e. latest by 12.10.2009. It is further evident from the statement of account dated 26.12.2019 (Annexure OP-7) that as per demands raised by the opposite parties, the complainant had paid an amount of Rs.14,92,575/- till 03.04.2017 i.e. Rs.7 lacs on 11.08.2006; Rs.2,62,500/- on 24.10.2006; and Rs.5,30,075/- on 03.04.2007. However, thereafter, it is surprising to note that despite the fact that possession of the unit in question was to be delivered by 12.10.2009, yet, construction work did not take place till 17.11.2011, for which no reasons have been assigned by the opposite parties. It is on record that, it was for the first time, vide letter dated 27.10.2011 (Annexure OP-6, at page 42 of the file) that the opposite parties informed the complainant that construction at the project site has started on 18.11.2011. It is significant to mention here that the opposite parties failed to apprise this Commission or to the complainant, as to why they failed to start the construction and deliver possession of the unit in question by the committed date i.e. 12.10.2009. Even at the time of arguments also, Counsel for the opposite parties failed to give any answer, on this count. The opposite parties utilized the huge amount of Rs.14,92,575/- deposited by the complainant, for a long time i.e. from 11.08.2006 to 17.11.2011, without providing him anything. However, thereafter also, the complainant was forced to make the remaining amount under the threat of cancellation of the unit and as such under dominating position huge amount totaling to Rs.49,32,544/- was received by the opposite parties without providing him anything. Record reveals that the complainant was pressurized to make payment, by way of sending reminders/notices within a short span of time, without giving any breathing time. Under these circumstances, we are of the considered opinion that after making payment of Rs.14,92,575/- by 03.04.2007, the complainant was right in holding payment for a short period, when he saw that there was no construction and development activities at the project site. In our considered opinion, the complainant could not be expected to go on making payments to the opposite parties, as per the payment plan, when he discovered that they are not in a position to hand over possession of the property in time, for want of construction and development at the project site. Our view is supported by the principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein, it was held that if the builder is at fault in not delivering possession of the residential units by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view has also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. In these circumstances, in no way, the complainant can be termed as defaulter, especially when it is a proven fact that, the opposite parties were not in a position to offer possession of the unit in question by the stipulated date or even thereafter for a long period, for dearth of construction and basic amenities.

                   The facts of the case transpire that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, was entitled to rely upon it and he may act in reliance on it. The complainant is thereby involved in a disadvantageous contract with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent of the opposite parties to induce the complainant to enter into a contract and also intent to deceive him.  Infact, the acts committed by the Company are not only fraud but also amounts to misrepresentation of facts. Even if it is assumed that both the parties were under mistake, as to matter of fact, even then the contract is void under the provisions of Section 20 of the Act, 1872. Objection taken in this regard, therefore, stands rejected. The complainant, is, therefore held entitled to refund of the entire amount paid to the opposite parties, towards price of the said unit.

16.           The question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver possession of residential units/plots, by the stipulated date, fell for determination before the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon`ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Recently also, under similar circumstances, the Hon`ble National Commission in Anil Kumar Jain & Anr. Vs. M/S. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019, ordered refund of the amount paid, alongwith interest @12% p.a.

                   Though, in view of principle of law laid down by the Hon`ble Supreme Court of India and also the National Commission, this Commission could have granted interest @12% p.a. to the complainant, yet, we cannot go beyond the rate of interest sought for by him in his complaint i.e. @10% p.a. As such, it is held that the complainant is entitled to get interest @10% p.a. from the respective dates of deposit on the amount of Rs.49,32,544/-, as prayed for by him in his complaint. In no way the opposite parties can forfeit any amount out of the deposited one, as it is not their case that the complainant has sought refund of amount paid on account of some personal reasons and is quitting before expiry of the period committed for possession, as contained in the agreement.

17.           As far as objection raised by the opposite parties, to the effect that this complaint is time barred, it may be stated here that the same is devoid of merit, in view of observations made by the Hon’ble National Commission in a case titled as Ansal Housing and Construction Ltd. Vs.  Tulika Gupta & anr., First Appeal No. 545 of 2017, decided on 24 Aug 2017, to the effect that till the time either the possession is handed over to the allottees or the amount paid by them was refunded; there will be a continuing cause of action to file a consumer complaint. Relevant part of the said order is reproduced hereunder:-

“As regards the plea of limitation, ordinarily if the  possession is not given to the allottees, they would have a recurrent cause of action to file the complaint till the time either the possession was given to them or the amount paid by them was refunded.  Of course, the complainants would also have an earlier cause of action in case allotment is cancelled.”

 

                   Even otherwise, in the present case, if period of two years is counted from 20.12.2019 i.e. the date when possession was offered to the complainant, even then this complaint having been filed on 04.11.2019 is within limitation.

18.           At the time of arguments, it was vehemently contended by Counsel for the opposite parties that since the project in question has been got registered under the RERA in the year 2018, as such, jurisdiction of this Commission is barred to entertain this complaint arising out in respect of the unit in question located in the said project and that the complaint be relegated to RERA. It may be stated here that it is an admitted fact that under the RERA, the opposite parties got themselves registered their project, only on 01.06.2018. At the time of said registration, no notice was issued to the complainant and other proposed buyers under the opposite parties and at the time of transaction between the parties in 2006, there was no registration of the project under RERA and now after a period of about 13 (thirteen) years of booking of the unit in question, the claim of complainant cannot be ignored on this score.

                   In all, in the present case, the grievance has been raised by the complainant qua wrongful act/mistake done, leading to deficiency in providing service, negligence and adoption of unfair trade practice, referred to above. Reading of the provisions of Section 88 of RERA makes it very clear that the same are in addition and not in derogation of the provisions of any other law for the time being in force. Section 79 of the RERA further makes it very clear that jurisdiction of only the Civil Court to entertain a suit or proceedings qua action taken as per the provisions of the said Act is barred. The Consumer Foras under the Act, 1986 despite having some trappings of a Civil Court are not the Civil Courts. As such, the jurisdiction of the Consumer Foras is not barred to entertain the complaints filed by consumers, alleging deficiency in providing service, negligence and adoption of unfair trade practice against the builder like the opposite parties. The view taken by this Commission is supported by the observations made by the Hon’ble National Commission in Mohit Sharma & Anr. Vs. M/s. Ramprastha Promoters and Developers Pvt. Ltd. & Anr., Consumer Case No. 2384 of 2017, decided on 01 May 2019, wherein it was held that RERA does not bar the jurisdiction of Consumer Fora. Similar view was reiterated by the Hon’ble National Commission in Sandeep Mittal Vs. Ireo Grace Realtech Pvt. Ltd., Consumer Case No. 1916 of 2016 decided on 30 Jul 2019.  

19.           As far as objection taken by the opposite parties to the effect that this Commission has no jurisdiction to entertain this complaint, and the matter needs to be relegated to the civil court, it may be stated here that it is a simple case of non-delivery of actual physical possession of the unit to the complainant by the promised date, referred to above, thereby causing financial loss, mental agony and harassment to the complainant. The acts, omissions and commissions on the part of the opposite parties amount to deficiency in providing service as well as negligence and adoption of unfair trade practice. In Narne Construction P. Ltd., etc. etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, this complaint involves the consumer dispute and the same is maintainable before this Commission. Objection taken in this regard is rejected.
20.           As far as objection taken to the effect that opposite parties no.2 and 3 have been wrongly impleaded as parties to this complaint, it may be stated here that the complainant by way of placing on record signatory details (Annexure C-8) of the Company (wherein the CIN/LLPIN has been mentioned), has proved that opposite parties no.2 and 3 remained active in the capacity of Director and CEO of the Company for the period from 10.05.2018 to 02.04.2020 and 19.06.2018 to 14.09.2020 respectively. Document-Annexure C-8 has gone unrebutted by the opposite parties, as nothing contrary to it has been placed on record. At the same time, the complainant in para no.7 of his complaint has specifically averred that these persons are managing the affairs of the Company. In our considered opinion, these persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the Company and will be jointly and severally liable alongwith the Company, for all the acts done. Similar view was taken by the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017. In this view of the matter, reliance placed by the opposite parties in Ashutosh Gangwar Vs. M/s Emaar MGF Land Limited and 6 Ors., consumer complaint no.1069 of 2017, decided by the Hon’ble National Commission, is misplaced. 
21.           For the reasons recorded above, this complaint is partly accepted with costs and the opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.49,32,544/- to the complainant, alongwith interest @10% p.a. (as prayed) from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.49,32,544/- shall carry 3% penal interest i.e. 13% p.a. (10% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay cost of litigation to the tune of Rs.50,000/-, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @10% p.a. from the date of passing of this order, till realization.

22.           However, it is made clear that if the complainant has availed loan facility from any Bank/Financial Institution, for making payment towards price of the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.
23.           Certified Copies of this order be sent to the parties, free of charge.
24.           The file be consigned to Record Room, after completion.

Pronounced

18.05.2020

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg.