Chandigarh

StateCommission

CC/179/2014

Jasvir Choudhary - Complainant(s)

Versus

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

in person

02 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	179 of 2014
Date of Institution	:	08.12.2014
Date of Decision	:	02/03/2015

 

Jasvir Choudhary, resident of House No.1539, Second Floor, Sector 34-D, Chandigarh (UT).

……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. Emaar MGF Land Private Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh-160017, through its Chief Service Officer.

              .... Opposite Parties

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

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                 MR. DEV RAJ, MEMBER

                 MRS. PADMA PANDEY, MEMBER

               

Argued by: Sh. Gaurav Bhardwaj, Advocate for the complainant.

                  Sh. Sanjeev Sharma, Advocate for the Opposite                      Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that, in response to the advertisement given by the Opposite Parties, in various leading newspapers, regarding the sale of plots, in their project, under the name and style of Mohali Hills, Mohali, Punjab, the complainant applied to them (Opposite Parties), vide application  No.3017, for the allotment of a residential plot, and paid a sum of Rs.5 lacs, as booking amount, vide cheque No.572913 dated 13.08.2012, drawn on the Axis Bank Limited, Chandigarh. Receipt dated 26.09.2012 Annexure-1 was issued towards receipt of the said amount, by the Opposite Parties. Vide Provisional Allotment letter dated 26.09.2012 Annexure-3, the complainant was allotted plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, @Rs.15,000/- per square yard, plus (+) External Development Charges of Rs.5,08,891/-.  The basic sale price of the said residential plot was to the tune of Rs.37,76,429.25Ps. Thus, the total sale consideration, in the sum of Rs.42,85,320.25Ps., was required to be paid by the  complainant.

2.       Plot Buyer's Agreement dated 01.10.2012, Annexure-2, in respect of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, was executed between the parties. The complainant opted for down payment plan. It was stated that, as per Clause 8 of the Plot Buyer's Agreement dated 01.10.2012, Annexure-2, subject to force majeure conditions, and reasons beyond the control of the Company, physical possession of the fully developed residential plot, was to be handed over to the complainant, within a period of 12 months, but not later than 18 months, from the date of execution thereof (Agreement). It was further mentioned, in the said Agreement, that, in case of delay, in handing over possession of the fully developed plot, within a period of 18 months, from the date of execution of the same, the Opposite Parties were liable to pay compensation/penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay.
3.       Thereafter, as per the payment plan, till January 2013, the complainant, in all, deposited an amount of Rs.40,76,677/-, i.e. more than 95%, towards part price of the said plot. It was further stated that since in the meanwhile, the External Development Charges were reduced by the Government of Punjab, an amount of Rs.2,82,124/-, was refunded by the Opposite Parties, to the complainant on 21.10.2014.
4.       It was further stated that the complainant patiently waited for the delivery of physical possession of the plot, in her favour. It was further stated that when possession of the plot, in question, was not offered, by the stipulated date, the complainant sent emails dated 01.05.2014, 08.09.2014 and 20.10.2014, with requests to the Opposite Parties, to apprise her about the status of the project, but to no avail. On the other hand, the Opposite Parties, gave vague replies, vide emails dated 16.05.2014 and 27.09.2014, and kept on lingering the matter, on the pretext that the work was in progress and they would deliver possession the unit, in question, soon. After waiting for sometime, the complainant requested the Opposite Parties to deliver physical possession of the plot, in question, but to no avail.
5.       It was further stated that the complainant approached the Opposite Parties, through every possible means, with a request to deliver possession of the plot, in question, but every time, they kept on putting off the matter, on lame excuses. It was further stated that when the complainant visited the site, she was surprised to see that there was no development. Even there was no hope of delivery of possession of the plot, in question, in the near future. Even necessary approvals/permissions were not obtained by the Opposite Parties, from the Competent Authorities, in respect of the project, in question.
6.       It was further stated that the Opposite Parties, vide email dated 21.10.2014, offered relocation to some other plot, in the same project. However, when the complainant saw the relocated plot, which was offered by the Opposite Parties, she did not found it suitable, on account of its location. As such, the said offer of relocation was declined by the complainant. The complainant, therefore, made a request for the refund of amount deposited by her, towards the said plot, alongwith interest and compensation, but to no avail.
7.       It was further stated that, however, till date, neither possession of the plot, in question, was delivered to the complainant, nor the amount deposited was refunded to her. Various letters were also written by the complainant, in the matter, to the Opposite Parties, but to no avail. It was further stated that the project floated by the Opposite Parties, was just a farce.
8.       It was further stated that the huge amount of Rs.40,76,677/-, deposited by the complainant, towards part price of the plot, in question, was utilized by the Opposite Parties, as a result whereof, she was caused financial loss. It was further stated that the complainant was to construct house, on the said plot, keeping in view her transfer liability and early retirement of her husband. It was further stated that even the complainant underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot, to her.
9.       It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also 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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to deliver possession of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, or in the alternative refund the amount of Rs.37,94,553/- alongwith interest @24% P.A., from the respective dates of deposits, till realization; pay compensation to the tune of Rs.5 lacs, towards mental agony, physical harassment, deficiency in rendering service and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.30,000/-.
10.       The Opposite Parties, put in appearance on 14.01.2015, and filed their written version, on 20.02.2015. In the written version, it was pleaded by the Opposite Parties, that the complaint was barred by time. It was further pleaded that the complainant did not fall within the definition of a “consumer” as defined under Section 2 (1) (d) of the Act, as she purchased the plot, 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. It was further pleaded that this Commission has no territorial Jurisdiction, to entertain and decide the complaint. It was further pleaded that the complaint was not maintainable, as an arbitration Clause, existed, in the Plot Buyer's Agreement dated 01.10.2012, Annexure-2, and, in case of any dispute, the matter was to be referred to the Arbitration. It was further pleaded that since the disputed questions of law and fact were involved in the consumer complaint, as such, the complainant was required to be relegated to the Civil Court, and the same could not be adjudicated by this Commission, the proceedings before which are summary in nature. It was admitted that the complainant applied to the Opposite Parties, vide application  No.3017, for the allotment of a residential plot, and paid a sum of Rs.5 lacs, as booking amount. It was also admitted that the complainant was allotted plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, @Rs.15,000/- per square yard, plus (+) External Development Charges of Rs.5,08,891/-,  the total sale consideration, whereof was to the tune of Rs.42,85,320.25Ps. It was also admitted that, as per the  Plot  Buyer's Agreement dated 01.10.2012, Annexure-2, possession of the plot, in question, was to be delivered to  the  complainant, within a period of 12 months, but not later than 18 months, from the date of execution thereof (Agreement). It was, however, stated that it was well within the knowledge of the  complainant that time was not the essence of contract and for any delays, stipulated penalty had been provided, in the Plot Buyer's Agreement dated 01.10.2012, Annexure-2, which safeguarded her rights. It was further admitted by the Opposite Parties, that the possession of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, could not be delivered by the stipulated date, and even till the date of filing the complaint, for want of basic amenities, at the site. It was further stated that since the amenities, where plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, is located, had not been completed, the complainant was offered relocation to some other plot, in the same project, where possession could be offered to her at the earliest, but she refused to accept the same, for the reasons best known to her. It was further stated that, in case, the complainant sought refund of the amount, deposited by her, towards plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, she would lose considerable amount, on account of cancellation and forfeiture, as per Clause 2 (f) of the Plot Buyer's Agreement dated 01.10.2012, Annexure-2. 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. The remaining averments, were denied, being wrong.
11.       The complainant submitted her affidavit, in support of the averments, contained in the complaint, by way of evidence, alongwith which, a number of documents were attached.
12.       The Opposite Parties, in support of their case, submitted the affidavit of Mr.Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, statement of account dated 23.01.2015, in respect of payment of part price of the said plot, made by the complainant, was attached. 
13.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.   
14.       The first question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here, that the mere objection of the Opposite Parties that the complainant purchased the plot, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in the prices thereof, does not carry any weight and is liable to be rejected. It was clearly averred, by the complainant, in paragraph no.4 of the complaint, supported by her affidavit, by way of evidence, that she wanted to construct the house, on the said plot, to reside therein, keeping in view her transfer liability and early retirement of her husband, as a result whereof, she intended to purchase the same, from the Opposite Parties. Even otherwise, the mere fact that it was a residential plot, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. No evidence was also produced, by the Opposite Parties, to prove that the complainant owned a number of other residential properties, in the tricity, and, as such, the plot, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. The complainant, thus, availed of the services of the Opposite Parties, for the allotment of a residential plot, in question, with a view to raise construction thereon, and reside in the same. The complainant, thus, fell within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.  
15.       The  next  question, that falls for consideration,  is, as to whether, the complaint filed by the complainant, was  within limitation  or not. The submission of the Counsel for the Opposite Parties, in this regard, being without substance is liable to be rejected. It may be stated here that, according  to Plot Buyer's Agreement dated 01.10.2012, Annexure-2, the Opposite Parties were to hand over physical possession of the plot, in favour of the complainant, within a maximum period of 18 months, from the date of execution thereof (Agreement). Thus, the possession of plot, in question, was to be delivered by the Opposite Parties, on or before 01.04.2014. According to Section 24A of the Act, a complaint could be filed within two years, from the date, on which the cause of action arose. The cause of action for the first time accrued to complainant, on 01.04.2014, when possession of the plot, in question, was not delivered to her, as per Clause 8 of the Plot Buyer's Agreement dated 01.10.2012, Annexure-2. Thus, the instant consumer complaint, having been filed 08.12.2014, could very well be said to be within limitation. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
16.       The next  question, that falls for consideration,  is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, a consumer complaint could 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 her. In the instant case, the Plot Buyer's Agreement dated 01.10.2012, Annexure-2, in respect of the plot in question, was executed, between the parties, at Chandigarh, as is evident from page 16 of the file. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission.  This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Parties, in their written version, that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, therefore, being devoid of merit, must fail, and the same stands rejected.
17.       The next question, that falls for consideration, is, as to whether, the consumer complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the existence of an arbitration Clause, in the Plot Buyer's Agreement dated 01.10.2012, Annexure-2.  With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, 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.”

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration Clause, in the Plot Buyer's Agreement dated 01.10.2012, Annexure-2, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in  Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the  Opposite  Parties, being devoid of merit, must fail, and the same stands rejected.

18.       The next question, that falls for consideration, is, as to whether, the disputed and complex questions of fact and law are involved, in the instant complaint, and as such, the adjudication thereof, is not possible, by this Commission, proceedings before which are summary, in nature. It may be stated here, that no disputed and complex questions of fact and law, are involved, in this complaint, the adjudication whereof is not possible by this Commission, though the proceedings before it are summary, in nature. It is a simple case of allotment of a unit, and non-delivery of possession thereof, by the stipulated date. The  complainant claimed that she purchased the said unit and deposited a sum of Rs.37,94,553/- towards the part price thereof, but was not handed over the possession of the same, by the stipulated date i.e. on 01.04.2014. The Opposite Parties, admitted that the aforesaid amount was deposited towards part price of the plot, in question. It was also admitted that possession of the plot, in question, could not be delivered by the stipulated date, or till date, for want of basic amenities at the site, where the same (plot) is carved. It is a well settled principle of law, that the parties are governed by the terms and conditions, contained in the Agreement. In the terms and conditions, in respect of the allotment of unit, in question, it was clearly stated, as to what would be the consequences, if the delivery of possession of the same (unit), was not made by the stipulated date.  Under these circumstances, by no stretch of imagination, it could be said that disputed and complex questions of fact and law, are involved, in the instant complaint, which require examination and cross-examination of the witnesses, and analysis of voluminous evidence. In J.J. Merchant (Dr.) V. Shrinath Chaturvedi, IV (2002) SLT 714 =III (2002) CPJ 8 (SC) =2002 CTJ 757 (SC) (CP), the Hon'ble Supreme Court, held as under:-

“This submission also requires to be rejected because   under   the   Act,  for  summary or speedy  trial,   exhaustive  procedure inconformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers, and that should not be curtailed, on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done, when some questions of fact are required to be dealt with or decided. The Act provides sufficient safeguards”.

19.       In CCI Chambers Coop. Hsg. Society Ltd. V. Development Credit Bank Ltd. V (2003) SLT 185=III (2003) CPJ 9 (SC)=2003 CTJ 84 (SC) (CP), the Hon’ble Supreme Court also held as under:-

“It cannot be denied that Foras at the National Level, the State level and at the District level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the Fora established under the Act. These Foras have been established and conferred with the jurisdiction in addition to the conventional Courts.   The   principal object sought to be achieved by establishing such Foras is to relieve the conventional Courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the complicated and detailed procedure, which at times is accompanied by technicalities. Merely because reading of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved”.

20.       The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The submission of the Counsel for the Opposite Parties, in their written version, that the disputed and complex questions of fact and law are involved in this complaint, the adjudication whereof is not possible, by this Commission, proceedings before which are summary, in nature,  thus, being devoid of merit, must fail, and the same stands rejected.
21.       The next question, which arises is, as to within which period, delivery of possession of the plot, was to be given to the complainant. The Plot Buyer's Agreement Annexure-2, in respect of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, was executed between the parties, on 01.10.2012. According to Clause 8 of this Agreement, subject to force majeure conditions, and reasons, beyond the control of the Company, it was to deliver physical possession of the plot, within a maximum period of 18 months, from the date of execution of the same (Agreement). It is, thus, evident, from this Clause, that the Opposite Parties, were required to deliver the possession of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab,  in favour of the  complainant, within 18 months, i.e. on or before 01.04.2014. Admittedly, possession of the plot, in question, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed. The Counsel for the Opposite Parties, frankly admitted in their written version, that they were not able to deliver possession of the plot, in question, to the complainant, by providing all amenities, as mentioned in the Agreement, till date. As stated above, more than 95%  of the sale consideration, towards plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, has already been paid by the complainant, but   possession  of the same (plot), has not been delivered to her, as the same is not developed.  Still the Opposite Parties have not given any exact date of delivery of possession of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab. On the other hand, offer of relocation was not accepted by the complainant, on account of the reason, that the same was not found suitable by her. Since, neither possession of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, which was allotted to the complainant, was offered to her (complainant) by the stipulated date nor by the time, the complaint was filed, nor till date, she (complainant) was right, in seeking refund from the Opposite Parties. By making a misleading statement, that possession of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, would be given to the complainant, within the maximum period of 18 months, from the date of execution of the Plot Buyer's Agreement dated 01.10.2012, Annexure-2, and by not abiding by the commitment, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.
22.       No doubt, 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  and Ashok Khanna Vs. Ghaziabad Development Authority, Revision Petition No.2002 of 2005, decided by the National Consumer Disputes Redressal Commission, New Delhi, on 18.08.2009, to contend that time was not the essence of contract. The facts of Smt. Chand Rani's and Ashok Khanna's cases (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. Whereas, in Ashok Khanna's case (supra), the National Consumer Disputes Redressal Commission, New Delhi, held that at the time of delivery of possession, the respondent did not charge any additional price. Rs.57,000/- were paid by the petitioner without any protest. In the said case, the possession was taken on 15.12.1993, whereas, the complaint was filed in the later months of 1995, i.e., after a lapse of about 2 years, which showed that, at the time of delivery of possession, the petitioner was satisfied, but later on he changed his mind and filed the complaint, seeking interest on the deposited amount. 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  Plot Buyer's Agreement dated 01.10.2012, Annexure-2, it was stipulated that possession shall be endeavoured to be delivered within a maximum period of 18 months, from the date of execution of the same (Agreement), yet, the same was not delivered till date. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid cases, can be drawn, by the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
23.       Since, the Opposite Parties are unable to deliver possession of the plot, for want of basic amenities, the next question that falls for consideration, is, as to whether, any direction, with regard to the delivery of possession of any other plot, could be given to the Opposite Parties, or not. It may be stated here that, as stated above, the complainant was offered relocation, by the Opposite Parties, to another unit, which was not acceptable to  her. Thus, in the view of the position discussed above, direction regarding the delivery of any alternative plot, cannot be given, by this Commission, as the same is not acceptable to the complainant.  
24.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of amount of Rs.37,94,553/- aforesaid, deposited towards the part price of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, in the manner, referred to above. The complainant, in the complaint has sought delivery of possession of the plot, in question, or in the alternative refund of the amount, deposited by her, alongwith other reliefs. The Counsel for the complainant, during the course of final arguments, submitted that, in view of the circumstances of the case, referred to above, the amount deposited by her (complainant), cannot be retained by the Opposite Parties, any longer, and, as such, the same may be ordered to be refunded, alongwith interest and compensation. As stated above, the Opposite Parties, failed to deliver possession of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, allotted in favour of the complainant, by the stipulated date or even till date. The Opposite Parties, therefore, had no right, to retain the hard earned money of the complainant, in the sum of Rs.37,94,553/- deposited towards the part price of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, without rendering her any service. Under these circumstances, the complainant was left with no alternative, than to ask for the refund of part sale consideration paid by her. In our considered opinion, the complainant is entitled to the refund of amount of Rs.37,94,553/- deposited by her, in the manner, referred to above, towards the part price of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab. By not refunding the amount, aforesaid, deposited by the complainant, the Opposite Parties were deficient, in rendering service.
25.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by her, if so, at what rate. The amount of Rs.37,94,553/- towards the part price of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, was deposited by the complainant. The complainant was deprived of her hard earned money, to the tune of Rs.37,94,553/- on the basis of misleading information, given by the Opposite Parties, that she would be handed over legal physical possession of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, on or before 01.04.2014, but they failed to do so. The complainant was, thus, caused financial loss.  Hard earned money, deposited by the complainant, towards the part price of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, was utilized by the Opposite Parties, for a long time. Had this amount been deposited by the complainant, in some bank, or had she invested the same, in some business, she would have earned handsome returns thereon. In case of delay, in deposit of instalment(s), the Opposite Parties had been charging compound interest @24% P.A., from the complainant, as per Clause 3 of the Plot Buyer's Agreement dated 01.10.2012, Annexure-2. It is, therefore, held that the Opposite Parties, by neither delivering the possession of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, 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. The complainant, is, thus, entitled to the refund of Rs.37,94,553/- alongwith interest @12% P.A., from the respective dates of deposits.
26.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, on account of mental agony and physical harassment or not. After making payment of Rs.37,94,553/- i.e. more than 90%, towards the price of plot no.108-PP-801-281, Mohali Hills, Mohali, Punjab, no progress was made by the Opposite Parties, at the site, by the stipulated date or even till date. The complainant had purchased the said plot, to have a roof over her head and her family, by constructing a house thereon, but her hopes were dashed to the ground, when possession of the same was not even offered to her, by the stipulated date or till date, what to speak of delivery thereof. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. The complainant, is, thus, entitled to compensation, to the tune of Rs.1,00,000/-, on account of this reason.
27.       The Counsel  for the Opposite Parties, however, submitted that the parties being governed by the terms and conditions of the Plot Buyer's Agreement dated 01.10.2012, Annexure-2, as per Clause 8 of the same (Plot Buyer’s Agreement), in case of delay, in delivery of physical possession of the residential plot, they (Opposite Parties), were only liable to make payment of penalty, in the sum of Rs.50/- (Rupees Fifty only) per sq.yd, per month, for such period of delay, beyond 18 months, from the date of execution of the same. It may be stated here, that such a submission of the Counsel for the Opposite Parties, would have been considered to be correct, had the directions, with regard to delivery of possession of the plot, in question, been given by this Commission. In the instant case, in view of the facts and circumstances of the case, specific prayer, during the pendency of the complaint, for the refund of amount, was made by the Counsel for the complainant, as there was no progress, in development of the area, where the plot, in question, is located,  and even the delivery of possession thereof, was not in sight. As stated above, the hard earned money of the complainant was used by the Opposite Parties, for investment, for a long time. She was neither given physical possession of the residential plot, nor refund of the amount. If the Opposite Parties are allowed to invoke Clause 8 of the Agreement, in the instant case, that would amount to enriching them, at the cost of the complainant. Under these circumstances, shelter cannot be taken by the Opposite Parties, under Clause 8 of the Plot Buyer's Agreement dated 01.10.2012, Annexure-2. The complainant, in our considered opinion, as stated above, is entitled to the refund of amount, alongwith interest @12% P.A.  
28.       No other point, was urged, by the Counsel for the parties.
29.        For the reasons recorded above, the complaint is partly accepted, with costs, and the Opposite Parties are jointly and severally directed as under:-
    1. To refund the amount of  Rs.37,94,553/- to the complainant, alongwith interest @12% per annum, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order.
    2. To pay compensation, in the sum of Rs.1,00,000/- (one lac), for causing mental agony and physical harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
    3. To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
    4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) with interest @15% P.A., instead of 12% P.A., from the respective dates of deposits, till realization and interest @12% P.A., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of costs, to the tune of Rs.20,000/-.
30.        Certified Copies of this order be sent to the parties, free of charge.
31.       The file be consigned to Record Room, after completion.

Pronounced.

March 2, 2015

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 [PADMA PANDEY]

MEMBER

 

 

Rg.