Chandigarh

StateCommission

CC/213/2016

Govind Paul - Complainant(s)

Versus

Emaar MGF Land Ltd. - Opp.Party(s)

Sh. Jagpal Singh, Adv.

16 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	213 of  2016
Date of Institution	:	16.05.2016
Date of Decision	:	16.08.2016

 

Govind Paul aged about 34 years son of Sh.Mohinder Pal Sadana, resident of House No.3725, Panchayati Gurudwara Street, Hamayunpura, Sirhind, District Fatehgarh Sahib, at present House No.1253, Sector 68, Mohali-160062.

……Complainant

V e r s u s

1. Emaar MGF Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director.
2. M/s Emaar MGF Land Limited, 1^st Floor, SCO 120-122, Sector 17-C, Chandigarh through its Branch Head.

1.     Second Address, Sector 105, Landran Banur Road, Opposite Reliance Petrol Pump, Mohali, 160062. 

              .... Opposite Parties

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

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by: Sh.Jagpal Singh Dhupar and Sh.S.S. Komal, Advocate for the complainant.

Sh.Sanjeev Sharma, Advocate for the opposite parties.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT’

                The facts in brief are that the opposite parties launched a residential project, under the name & style ‘The Views” at Mohali Hills, Sector 105, Mohali, Punjab. Allured by the salient features of the project, the complainant moved an application dated 22.08.2011, for allotment of an apartment, in the said project, on payment of Rs.7 lacs, as registration amount. Vide provisional allotment letter dated 30.08.2011, the complainant was allotted apartment bearing no.TVM H2-GF-GF03, Tower H2, in the said project (in short the unit), for a total sale considerate of Rs.42,18,200.79Ps., which included External Development Charges (EDC), Preferential Location Charges (PLC), Car parking charges, Interest Free Maintenance Security etc. For making payment towards the said unit, the complainant availed loan amount to the tune of Rs.32,88,056/- @10.25%, from the ICICI Bank, for which he is paying equated monthly installments @Rs.45,404/-. The complainant opted for down payment plan. Apartment Buyer’s Agreement in respect of the unit, in question, was executed between the parties, on 27.09.2011. Thereafter, the amount of Rs.32,88,056/- was paid to the opposite parties vide cheque dated 14.10.2011, by the complainant. It was stated that  by 14.10.2011, the complainant deposited total amount of Rs.39,88,056/-, in respect of the unit, in question.

2.         It was averred that, as per Clause 21.1 of the Agreement, the opposite parties were liable to deliver physical possession of flat, within a maximum period of three years, from the date of allotment i.e. latest by 29.08.2014, however, it was not in sight. Many letters exchanged between the parties, did not yield any positive result. Even the cost of the unit, in question, was unilaterally revised and enhanced by the opposite parties. The opposite parties failed to hand over physical possession of the unit, to the complainant, within the time frame, stipulated in the Agreement, referred to above. Ultimately, when the complainant was not heard, left with no alternative, legal notice dated 25.02.2016 was got served upon the opposite parties, in the matter, but to no avail.  It was averred that by not delivering physical possession of flat, in question, to the complainant, the opposite parties were not only deficient, in rendering service, but also indulged into unfair trade practice. Hence this complaint was filed by him, seeking various reliefs.
3.         Upon notice, joint written reply was filed by the opposite parties, wherein it was pleaded that in the face of existence of an arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It was further averred that the complainant did not fall within the definition of a “consumer” as defined under Section 2(1)(d) of the Act, as he had purchased the flat, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. Pecuniary and territorial jurisdiction of this Commission was also disputed. It was pleaded that the complaint is palpably barred by time.
4.         Purchase of flat by the complainant, is not disputed. Payments made are also not disputed. It was pleaded that the complainant being subsequent purchaser, would not fall within the definition of consumer. It was stated that, as per Clause 21.1 of the Agreement,  it was agreed to between the parties, that the Company shall make endeavour to deliver possession of the flat, within a maximum period of three years (wrongly stated as 24 months), from the date of allotment i.e. from 30.08.2011. In other words, an attempt was made to say that time was not the essence of contract. It was further stated that it was well within the knowledge of the complainant that for any delays, stipulated penalty has been provided in the Agreement, which safeguarded his rights. It was stated that finishing work, in the flats, is being undertaken and after completion thereof, possession of the flat will be delivered to the  complainant very soon. It was also averred that the opposite parties are still ready to relocate the complainant and also for paying penalty amount, for the period of delay in delivery of possession. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite parties, nor they had indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5.         In the rejoinder filed, the complainant reiterated all the averments, contained in the complaint and repudiated those, contained in written version of the opposite parties.
6.         The parties led evidence in support of their case.
7.         We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully.
8.         The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

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

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

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

                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.”

9.         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.
10.         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.”

11.         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.
12.         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.
13.         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 parties. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/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.
14.         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 flat, in the said project, launched by the opposite parties. However, his hopes were shattered, when despite making almost the entire sale consideration, he failed to get possession of the unit, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.
15.         Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

                In view of the above, the plea taken by the opposite parties, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.

16.         The objection taken by the opposite parties, to the effect that the complainant being investor, did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. 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 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. On the other hand, by placing on record, rent deeds pertaining to a rented house at Mohali, it has been proved by the complainant that he alongwith his family was forced to live in a rented accommodation, in the absence of delivery of possession of the flat, in question, by the stipulated date. 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 being investor, 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. 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.  
17.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident from the record, that the Agreement was executed between the parties at Chandigarh. Not only this, even the provisional allotment letter, as also payment receipts placed on record, bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh”, and as such, it could very well be said that the same were issued by Chandigarh office of the Company. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

18.         Another objection taken by the opposite parties, with regard to pecuniary jurisdiction of this Commission, also deserves rejection. It may be stated here, that the complainant has sought refund of an amount of Rs.58,22,626/- (actual paid Rs.39,88,056/-), towards price of the flat, alongwith interest @18% p.a. from the respective dates of deposits, till realization;  interest paid by him,  on the loan amount, amounting to Rs.12,66,679/-; compensation to the tune of Rs.10 lacs, for mental agony & physical harassment; rental amount to the tune of Rs.5,11,600/- paid by him; compensation @Rs.5/- per square feet per month, for the period of delay, amounting to Rs.1,28,250/- and cost of litigation, to the tune of Rs.25,000/-, aggregate value whereof [excluding the interest claimed] fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

                As far as the interest claimed by the complainant, on the amount aforesaid is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission 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 taken by the opposite parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

19.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It may be stated here that it has been frankly admitted by the opposite parties, in number of paragraphs of their joint written statement that offer of possession of the flat, in question, could not be made till date, for want of complete construction work and basic amenities at the site. On the other hand, amount deposited was also not refunded to the complainant alongwith interest, till date. As such, there is continuing cause of action, in favour of the complainant to file a consumer complaint, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for  the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
20.         Another objection raised by Counsel for the opposite parties that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the flat within maximum period of three years, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 21.1 of the Agreement that possession of the flat will be delivered by the opposite parties, within a period of maximum three years from the date of allotment, subject to force majeure circumstances or reason beyond their control. In the instant case, the opposite parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the opposite parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 21.1 of the Agreement, the opposite parties were bound to deliver possession of the unit, within a maximum period of three years from the date of allotment thereof, as such, time was,  unequivocally made the essence of contract.

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

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

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

21.         No doubt, Counsel for the opposite parties, placed reliance on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, a case decided by the Hon’ble Supreme Court  to contend that time was not the essence of contract. The facts of Smt. Chand Rani's are distinguishable, from the facts of the instant case. Smt. Chand Rani's case (supra), related to the specific performance of contract. It was held that intention to make time as the essence of contract, must be expressed in unequivocal terms in the Agreement. It was, under these circumstances, held in the said case that time was not the essence of contract. Whereas, in the instant case, as stated above, as per Clause 21.1 of the Agreement, subject to force majeure conditions, and reasons beyond the control of the Company,  physical possession of the fully developed flat, was to be handed over to the complainant, within a period of three years, from the date of allotment thereof. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by Counsel for the opposite parties. The submission of the Counsel for the opposite parties, thus, being devoid of merit, must fail, and the same stands rejected.
22.         Another objection was raised by Counsel for the opposite parties, that since the complainant is subsequent allottee, as such, he is not a consumer. It may be stated here that the complainant is the first allottee and not a subsequent purchaser. Application was moved by the complainant, for purchase of the flat, in question, whereupon, he was allotted the same, vide provisional allotment letter, referred to above, followed by execution of Buyer’s Agreement between the parties. Not even a single document has been produced on record by the opposite parties, to prove that the complainant is a subsequent purchase of flat, in question. As such, the objection taken by this opposite parties, in this regard, being devoid of merit, is rejected.
23.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount, deposited by him. It is an admitted fact that the  opposite parties are unable to deliver  possession of the unit, in question, for want of complete construction; basic amenities etc.  as admitted by them, and firm date of delivery of possession of the unit, could not be given to him (complainant). It is well settled law that the purchaser/allottee cannot be forced for relocation to any other unit, unless and until she/her wishes to do so. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the flat purchased by him. The  opposite parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the  opposite parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.        
24.           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.39,88,056/- 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  quarterly @15%) as per Clauses 4.1 and 20.1 of the Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.39,88,056/- alongwith interest @15% compounded quarterly, from the respective dates of deposits till realization. 
25.          Since, it has already been held that the complainant is entitled to refund of the amount deposited, alongwith interest and compensation, as such, the plea taken by the opposite parties to the effect that they are ready to pay penalty amount for the period of delay, in delivery of possession cannot be considered, at this stage. If the opposite parties are allowed to invoke Clause 23.1 of the Agreement, in the instant case, regarding payment of penalty, that would amount to enriching them, at the cost of the complainant. The defence taken is accordingly rejected.
26.         Similarly, once it has been held above that the complainant is entitled to refund of the amount deposited alongwith interest and compensation, as such, he cannot be doubly benefited by awarding penalty, for the period of delay aforesaid, as prayed by him. As far as other financial loss is concerned, the complainant has been adequately compensated, in the manner, referred to above. It is settled principle of law, that compensation should neither be excessive nor too meagre. In Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital and Another, IV (2010) CPJ 199 (N.C.), it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the compensation should commensurate with loss and injury, suffered by the complainant. The Consumer Foras are not meant to enrich the consumers, at the hands of the service providers, by awarding excessive compensation. As such, besides refund of amount alongwith interest compensation and litigation expenses, the complainant is not entitled to any other relief, sought for by him, in the prayer clause.
27.         No other point, was urged, by Counsel for the parties
28.         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.39,88,056/- to  the  complainant, alongwith interest @ 15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.25,000/-   to the  complainant, as per prayer made in the complaint.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

28.         However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
29.         Certified Copies of this order be sent to the parties, free of charge.
30.         The file be consigned to Record Room, after completion.

Pronounced.

16.08.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

 Rg