Chandigarh

StateCommission

CC/322/2015

Gurmukh singh - Complainant(s)

Versus

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

Vishal Goel,Adv.

26 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	322 of 2015
Date of Institution	:	28.12.2015
Date of Decision	:	26.04.2016

 

Gurmukh Singh s/o Dhian Singh Bhullar r/o Village Phus Mandi, P.O. & Tehsil Sardulgarh, District Mansa, Punjab. Now r/o House No.1258, Sector 44-B, Chandigarh.

 

……Complainant

V e r s u s

1. Emaar MGF Land Limited, MGF House, 17-B, Asaf Ali Road, New Delhi – 110002, through its Authorised Officer.
2. Emaar MGF Land Limited, SCO No.120-122, 1st Floor, Sector 17-C, Chandigarh, through its Authorized Officer.  

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh. Vishal Goel, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainant initially paid the booking amount of Rs.5 lacs on 03.11.2009 to the Opposite Parties for the purchase of Bungalow. On 24.11.2009 provisional allotment of unit No.TBM-300-AP-286 in the project of the Opposite Parties i.e. Mohali Hills, Mohali was issued by them (Annexure C -1). It was stated that Buyer’s Agreement was also executed between the parties at Chandigarh on 11.01.2010 (Annexure C-2). According  to the said Agreement, the total sale consideration of the unit was to the tune of Rs.75,69,300/-.  It was further stated that as per Clause 8 of the terms and conditions of the Buyer’s Agreement, possession of the unit was to be delivered within a period of 24 months from the date of execution of the Agreement i.e. upto 11.01.2012 but the Opposite Parties failed to deliver the same till 2014. Thereafter, in the year 2014, it came into the knowledge of the complainant that the area, on which, the unit of the complainant was to be built, was not PUDA approved, as such, the construction on the site was not even started, then he approached them to enquire the matter and asked for refund of the money. It was further stated that the Opposite Parties agreed to allot the new unit instead of the previous one and orally committed to hand over possession of the said unit within a period of three months from the allotment and accordingly, new unit No.TBM-300-CG-80 was allotted and in this regard, the letter dated 26.04.2014 (Annexure C-3) was issued by the Opposite Parties. It was further stated that on 09.05.2014 Amended Agreement was executed between the parties (Annexure C-4), according to which, total sale consideration of the new unit was fixed as Rs.82,97,100/-.  It was averred that the complainant paid an amount of Rs.77,27,335/- for the unit, as per statement of account (Annexure C-5). It was further averred that the original Agreement was executed on 11.01.2010 and amended Agreement was executed between the parties on 09.05.2014, accordingly, approximately 6 years has expired from the original Agreement and more than 1 year and 7 months has expired from the amended Agreement but the Opposite Parties failed to deliver possession of the unit, in question, to the complainant. Due to non-delivery of possession, the complainant has to suffer a lot because on the one hand, he was burdened with interest on the loan taken for the purchase of the unit from HDFC Bank and on the other hand, he was burdened with the rent. Copies of Tripartite Agreement dated 09.05.2014 and Rent Deed dated 12.03.2015 are Annexure C-6 and C-7. It was further stated that the material used by the Opposite Parties for the construction of the unit also of sub-standard and, as such, the complainant is now interested to get his money refunded instead of possession of the unit. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.           The Opposite Parties, in their joint written version, have taken objection regarding arbitration clause in the Agreement, and also they separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement.  It was further stated that this Commission has got no pecuniary jurisdiction to try and entertain the complaint, as the amount of Rs.77,27,335/- alongwith interest @24% p.a. plus Rs.5 lacs compensation, as claimed, exceeds beyond one crore. It was further stated that the complainant has not rescinded the contract due to alleged delay in handing over possession, further shows that time is not the essence of the contract and he accepted the alleged delay without protest. It was further stated that there was no definitive agreement stating that possession would definitely be delivered within 3 years. The word used in Clause 8 is “endeavor” which means to try/make effort. It was further stated that the complainant agreed to relocation and signed amended agreement on 09.05.2014 and he also made the payments in 2014, which shows that he was well aware of the delay in possession. It was further stated in case the complainant wants refund, then the same would amount to cancellation of contract and charges as per clause 2(f)(iii) would be leviable.  It was admitted that the complainant initially booked a unit TBM-300-AP-286 in Sector 109, Mohali.  It was also admitted that the Opposite Parties received an amount of Rs.77,27,440/- from the complainant against the unit. It was denied that there was any promise to provide possession within any fixed timeline. It was further stated that the complainant never demanded immediate possession even when the alleged stipulated time of 24 months expired in 2012, rather, he sought allotment of alternate unit at preferred location and also amended Agreement was also signed by him for allotment of the unit in 2014, so he cannot claim compensation, at this stage. It was further stated that in case the Company fails to deliver possession within the timeframe mentioned in the Agreement, the Company is liable to pay penalty to the allottee for entire period of such delay beyond 24 months. It was further stated that the Opposite Parties never handed over possession of the unit to the complainant and as such, the allegations regarding sub standard material etc. are not only baseless but premature at this stage. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

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

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

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

6.           Admittedly, the complainant booked unit bearing No.TBM-300-AP-286 in Augusta Park, Sector 109, Mohali and total sale consideration of the unit, in question, was Rs.75,69,300/-, as stipulated from Buyer’s Agreement, which was executed between the parties on 11.01.2010 at Chandigarh (Annexure C-2). It is also the admitted fact that provisional allotment letter dated 24.11.2009 (Annexure C-1) of Bungalow No.TBM-300-AP-286 in the project The Bungalows at Mohali Hills, Mohali was issued to the complainant. It is also the admitted fact that the complainant was allotted new unit bearing No.TBM-300-CG-80 vide letter dated 26.04.2014 (Annexure C-3) and also Amended Agreement was also executed between the parties, at Chandigarh, on 09.05.2014 (Annexure C-4), according to which, the total sale consideration of the new unit was fixed at Rs.82,97,100/-, out of which, the complainant paid an amount of Rs.77,27,335/-, as stipulated from statement of account (Annexure C-5). It is also the admitted fact that the complainant took loan from Housing Development Finance Corporation Limited and, as such, Tripartite Agreement was also executed between the parties on 09.05.2014 (Annexure C-6). It is also the admitted fact that the Opposite Parties failed to hand over physical possession of the unit, in question, to the complainant, despite repeated requests.  

7.           The principal 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. It may be stated here that under similar circumstances, in the cases titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016 and Praveen Kumar Arora & Anr. Vs. Emaar MGF Land Limited, Complaint case No.198 of 2015, decided on 04.04.2016 decided alongwith other connected cases, the issue regarding the arbitration has been dealt with in detail by this Commission and after giving detailed findings, the argument raised on behalf of the Builder 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, the State Commission has no jurisdiction to entertain the consumer complaint, has been rejected. In view of the above, it is held that this Commission has jurisdiction to entertain this complaint. 

8.           As far as the objection raised by Counsel for the Opposite Parties, with regard to pecuniary jurisdiction, on the ground that refund of the amount i.e. Rs.77,27,335/- alongwith interest @24% p.a. plus Rs.5 lacs compensation, as claimed by the complainant, exceeds beyond Rs.1 crore and, as such, this Commission has no pecuniary jurisdiction to try and entertain the complaint. It may be stated here, that the complainant has sought refund of the amount of Rs.77,27,335/-, paid by him, towards price of the said unit, alongwith interest @24% p.a ; compensation to the tune of Rs.5 lacs, for mental agony & harassment and cost of litigation, to the tune of Rs.55,000/-, 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 @24% p.a, claimed by the complainant, on the amount of Rs.77,27,335/- aforesaid, 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 submission of Counsel for Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

9.           No doubt, the 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 case (supra), 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 per Clause 8 of the original Buyer's Agreement dated 11.01.2010,  the Opposite Parties were to hand over physical possession of the said unit, in favour of the complainant, within a maximum period of 24 months, from the date of execution of the same i.e. latest by 11.01.2012 but till 2014, they failed to hand over possession of the unit to him. Therefore, the complainant has no option but to accept re-allotted unit but the Opposite Parties have been failed to give physical possession of the re-allotted unit to him, despite repeated requests. Even after the expiry of more than about 6 years from the original Agreement and approximately about 2 years from the Amended Agreement, the possession thereof, was not delivered to the complainant. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Opposite Parties. The plea taken by the Opposite Parties, in their written statement, thus, being devoid of merit, must fail, and the same stands rejected.

10.          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 8 of the  Buyer’s Agreement dated 11.01.2010 (Annexure C-2), subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver possession of the unit, in question, within a period of 24 months, from the date of execution of the Agreement. It is, thus, evident, from this Clause, that the Opposite Parties were required to deliver possession of the unit, in question, in favour of  the complainant,  within the maximum period of 24 months, from the date of execution of the  Agreement dated 11.01.2010, i.e. latest by January, 2012. However, till 2014, the Opposite Parties failed to give possession of the unit to the complainant. Thereafter, on the request of the complainant, alternative unit bearing No.TBM-300-CG-80 was allotted to him vide letter dated 26.04.2014 (Annexure C-3) because he has no option, except to accept the said unit for early possession and an Amended Agreement in May, 2014 was also executed between the parties. According to the complainant, at the time of allotment of alternate unit, the Opposite Parties ensured to give possession of the said unit, complete in all respects, within 3 months but almost 2 years has expired from the amended Agreement, the Opposite Parties failed to give physical possession of the re-allotted unit to the complainant, despite repeated requests. Moreover,  the Opposite Parties already received a huge amount of Rs.77,27,335/-, towards the said unit, as is evident from the statement of account (Annexure C-5). By making a misleading statement, that possession of the unit, was to be delivered within a period of 24 months, from the date of execution of the original Agreement and 2 years after the execution of the Amended Agreement, the Opposite Parties failed to abide the commitments, as such, they were not only deficient, in rendering service, but also indulged into unfair trade practice.

11.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.77,27,335/-, deposited by him, towards the part price of unit, in question. The complainant, in his complaint has sought refund of the amount, deposited by him, towards the same. Under these circumstances, the complainant is entitled to refund of the amount, deposited by him, towards the said unit.  By not refunding the amount to the complainant, the Opposite Parties were deficient, in rendering service.

              At the time of arguments, Counsel for the Opposite Parties submitted 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. It is, no doubt, true that initially the complainant booked the unit bearing No.TBM-300-AP-286 in the project of the Opposite Parties and, as such, Buyer’s Agreement was also executed between the parties on 11.01.2010 (Annexure C-2) but they failed to hand over possession of the unit till 2014. According to the complainant, it came into his knowledge that the project,  where he booked the unit, was not PUDA approved and, as such, he approached the Opposite Parties and asked for refund of the amount. The Opposite Parties were started to make excuses on one pretext or the other and finally agreed to allot new unit instead of previous one and orally committed to hand over possession of the said unit within a period of 3 months. In that regard, Amended Agreement in May, 2014, was also executed between the parties but the Opposite Parties failed to give alternate unit to the complainant, despite repeated requests, after completion of 2 years from the execution of the Amended Agreement. So, it is clearly proved that it was mutually agreed between the parties for allotment of alternate unit. It is made clear that the Opposite Parties have not fulfilled their part of the Agreement and failed to develop the infrastructure alongwith other amenities and nor given possession of the alternate unit to the complainant. So, there was no fault on the part of the complainant and the Opposite Parties are, thus, in breach of their part of the obligation and are deficient in providing services even after receipt of the huge amount and, as such, the Opposite Parties are not entitled to forfeit any amount, and refund the deposited amount, as prayed by the complainant.  

12.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount of Rs.77,27,335/-, if so, at what rate. The complainant was deprived of his hard earned money, to the tune of Rs.77,27,335/-, on the basis of misleading information, given by the Opposite Parties, that they would be handed over legal physical possession of the unit, in question, after the completion of 24 months from the original Agreement i.e. by 11.01.2012. However, the Opposite Parties failed to deliver physical possession of the previous unit to the complainant, after completion of more than 6 years from the original agreement and not only this, they failed to deliver physical possession of the alternate unit, which was allotted to him, thereafter, despite repeated requests, after completion of 2 years from the execution of Amended Agreement. 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 Parties, for a number of years. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. It is therefore, held that the Opposite Parties, by neither delivering possession of the unit, by the stipulated date, nor refunding the amount to the complainant, were not only deficient, in rendering service, but also indulged into unfair trade practice. No doubt, as per Clause 3 of the Plot Buyer’s Agreement, the Opposite Parties were charging interest @24% per annum compounded from the complainant. Under these circumstances, in our considered opinion, if  interest  compounded @15% P.A., on the amount deposited by the complainant, from the respective dates of deposits, is granted, that will serve the ends of justice.  

13.          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 him. 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 Parties, for a number of years, as they neither delivered physical possession of unit bearing No.TBM-300-AP-286 nor delivered physical possession of the alternate unit i.e. bearing No.TBM-300-CG-80, to him. The complainant purchased the unit, with the hope to have a roof over his head, by raising construction thereon, but his hopes were dashed to the ground. Till date, physical possession of the alternate unit, has not yet been given, to the complainant, by the Opposite Parties. The complainant, thus, underwent a lot of mental agony and harassment, on account of the acts of omission and commission of the Opposite Parties. 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/-.

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

15.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed, as under:-

1. To refund the amount Rs.77,27,335/-, to  the complainant, alongwith interest compounded @ 15% 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. Housing Development Finance Corporation Limited shall have the first charge, on the amount to be refunded, to the complainant, by the Opposite Parties, to the extent, the amount is due to it, against the complainant as it had advanced loan in his favour for part payment of the price of unit, in question, under the Tripartite Agreement dated 09.05.2014 (Annexure C-6).
4. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
5. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest compounded @18 % P.A., instead of compounded @ 15% P.A., from the respective dates of deposits, till realization, and interest compounded @15% 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.

 

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

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

Pronounced.

April  26, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [DEV RAJ]

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER

rb