Chandigarh

StateCommission

CC/617/2016

R Kesavan - Complainant(s)

Versus

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

Savinder Singh Gill Adv.

31 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	617 of 2016
Date of Institution	:	22.09.2016
Date of Decision	:	31.01.2017

 

R. Kesavan s/o Sh. Rangachari N., r/o flat No.702, Jasmine Regency Garden, Plot No.10, Sector 6, Kharghar, Navi Mumbai, Maharashtra.

……Complainant

V e r s u s

1. Emaar MGF Land Ltd., SCO No.120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/ Authorized Signatory.
2. Emaar MGF Land Ltd.,  ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001, through Managing Director/Authorized Signatory.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Savinder Singh Gill, Advocate for the complainant.

Sh.  Ajiteshwar Singh, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainant was willing to own a residential unit for his family and personal use, with an intention to shift to a peaceful city and in pursuance of the same, applied for a unit having super area of 1750 sq. ft. in the project being developed by the Opposite Parties under the name and style of “The Views at Mohali Hills” in Sector 105, Mohali Hills, SAS Nagar, Mohali on 16.08.2006 and made the booking amount of Rs.7 lacs vide receipt (Annexure C-1). Subsequently, the complainant was allotted apartment No.G3/504 vide provisional allotment letter dated 25.10.2006 (Annexure C-2). It was further stated that the allotment of the unit was changed to apartment No.H1/302 in the same project vide provisional allotment letter dated 06.04.2007 due to the alterations and change of numbering in the master plan and the old provisional letter was accordingly withdrawn by the Opposite Parties. Copies of the allotment letter dated 06.04.2007 and the letter dated 07.04.2007 received from the Opposite Parties mentioning the reasons for change in provisional allotment are Annexures C-4 & C-5. As per the allotment letter, the total consideration of the said flat was fixed at Rs.53,17,750/-. It was further stated that the complainant vide letter dated 11.12.2007 raised the grievance of not having received the Buyer’s Agreement for the said unit and the same was sent, thereafter, on 29.01.2008 after a delay of almost 1 ½ years. The complainant also sent a letter dated 07.07.2008 raising the grievance of not sending the Agreement within a reasonable time. Copies of the letters dated 11.12.2007, 29.01.2008 and 07.07.2008 are Annexures C-8 to C-10. It was further stated that the Opposite Parties were informed regarding the change of address of the complainant but they kept on sending payment reminders to the old address. The complainant sent a letter dated 24.06.2009 (Annexure C-12) to the Opposite Parties apprising of the already notified change in address. It was further stated that the complainant received a final reminder letter dated 16.11.2010 from the Opposite Parties regarding non-signing the Agreement by the complainant (Annexure C-15), which was duly replied by him vide letter dated 22.02.2011 (Annexure C-16), in which, he asked the Opposite Parties to clarify the various queries regarding the clauses in the Agreement. Thereafter, the complainant sent another letter dated 17.06.2011 (Annexure C-17) to the Opposite Parties regarding clarification of the clauses but they did not satisfy the queries of the complainant. The Opposite Parties sent a final notice dated 11.07.2011 (Annexure C-19) to the complainant, whereby, they threatened him to execute the Agreement without clarifying on the queries raised by him and further intimated that the allotment would be cancelled without any further notice. Subsequently, the Opposite Parties vide letter dated 14.12.2011 (Annexure C-20) cancelled the allotment of the complainant. The complainant thereafter got in touch with the Opposite Parties regarding the unilateral cancellation of the unit and sent letters and emails (Annexure C-22 colly.). In the meanwhile, when the talk regarding revival of the unit were going on, the complainant made another payment of Rs.9,95,052/- to the Opposite Parties on 24.07.2013. Finally, the Opposite Parties revived the unit in July, 2013 and the complainant was asked to tender an indemnify bond in the said regard. Copies of the emails are Annexure C-23 (colly.). It was further stated that on 28.10.2014 Apartment Buyer’s Agreement was executed between the parties and according to Clause 21 of the Agreement, possession of the unit was to be delivered to the complainant within a period of 36 months from the date of allotment (07.04.2007). Copies of the Buyer’s Agreement and receipt are Annexures C-24 & C-25. It was further stated that the complainant already made the payment of Rs.49,23,113/- to the Opposite Parties in respect of the unit, in question, as per account statement (Annexure C-26).  The complainant sent various letters and emails to the Opposite Parties for delivery of possession of the unit, as the same was delayed considerably but they did not bother and when the complainant asked for refund of the amount, they refused to refund the same. Copies of the correspondence are Annexure C-27 (colly.). It was further stated that the act of not presenting the Agreement for execution within the reasonable period of time and collecting money without giving a firm date of handing over of possession is an act of unfair trade practice. 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 written version, have taken objection regarding arbitration clause in the Agreement, and 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 stated that the complainant did not fall within the definition of “Consumer”, as envisaged in the Consumer Protection Act, 1986 because he stated in his complaint that he has executed multiple Agreements/sale deeds, with other property developers and he has purportedly never faced issues as raised in the complaint, with other developers. It was further stated that this Commission has no pecuniary jurisdiction to try and entertain the complaint, as the amount claimed by the complainant is beyond the pecuniary jurisdiction of this Commission because he claimed interest to the tune of 24% p.a. from the date of respective deposits alongwith refund of the principal amount of Rs.49,23,113/-, in addition to the amount of Rs.10 lacs for mental agony and harassment alongwith Rs.1 lac as litigation expenses. It was admitted regarding booking of the unit in the project of the Opposite Parties. It was further stated that the complainant was provisionally allotted an apartment bearing No.G3/504 subsequently through a letter dated 06.04.2007 (Annexure C-4) and the said allotment was changed to H1/302. The said change was in view of the written request of the complainant (Annexure R-2). It was further stated that the Opposite Parties forwarded Agreement in respect of the unit and even sent reminder on 02.09.2008 but the complainant failed to duly sign and return the same. Further, reminders dated 29.09.2008 and 15.06.2009 were also sent to the complainant. Copies of the letters are Annexure R-3. It was further stated that the complainant had failed to defray amounts due in respect of the unit in a timely manner, as such, the Opposite Parties were constrained to cancel the allotment of the complainant vide letter dated 14.12.2011 (Annexure C-20). It was further stated that the Opposite Parties are consumer oriented company because the allotted unit was considered for revival. Furthermore, as a gesture of good-will, the late payment charges were also waived by the Opposite Parties.  It was further stated that the Opposite Parties in consideration of waiver of the delay/late payment charges, as also, revival of the cancelled unit, the complainant had to give an undertaking-cum-indemnity bond but the said undertaking was filed after a lapse of one year i.e. on 20.05.2014 (Annexure R-6). It was further stated that the complainant was offered an alternate plot, which is ready for immediate possession, as is evident from Annexure C-27, referring to the Opposite Parties mail dated 07.07.2016 but the complainant chose to file the present complaint. It was further stated that the Opposite Parties have already offered possession in two towers of the project and work is already proceeding on an expeditious bases to hand over the remaining units/towers at the earliest. It was further stated that external plaster on tower H2 have already been completed and flooring work is under progress and moreover, the said unit could be handed over to the complainant in July, 2017. All the remaining allegations leveled by the complainant in the complaint have been denied by the Opposite Parties. 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.            The first question that falls for consideration is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Parties, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even 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 jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

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

7.            Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainant has sought refund of an amount of Rs49,23,113/- paid by him, towards price of the unit, alongwith interest @24% p.a. from the respective dates of deposits, till realization;  compensation to the tune of Rs.10 lacs, for mental agony & physical harassment; and cost of litigation, to the tune of Rs.1,00,000/-, aggregate value whereof [excluding the interest claimed] fell above Rs.50 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 deposited amount 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. This issue has already been elaborately dealt with by this Commission in Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. & Anr., Consumer Complaint No.484 of 2016, decided on 15.12.2016. Relevant portion of the aforesaid judgment reads thus :-

“13.  Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and  in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

14.         In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. 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.”

 

15.         It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

                As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

                In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

16.         In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

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.

8.           The objection taken by the Counsel for the Opposite Parties, to the effect that the complainant stated he has previously bought residential properties from other property developers/builders and the complainant has executed multiple Agreements/sale deeds, with other property developers and he has purportedly never faced issues, as raised in the complaint, with other developers, and, therefore he does not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act. Not only this, the Counsel for the Opposite Parties also moved an application under Or.XI, Rule 12, read with Rule 16 and Section 151 of the Code of Civil Procedure, 1908, as also Section 13(4) of the Consumer Protection Act, 1986 seeking directions that the complainant should disclose documents etc. in his possession.

              The aforesaid application was rebutted by the complainant by filing reply, in which, it has been stated that the complainant is a Financial and Legal Advisor by profession and he was referring to the Agreements, which he has seen before advising his relations for investment. It is further stated that the complainant is referring to the property purchased by his other family members where he had assisted the said family members in execution of the said Agreements. It is further stated that the complainant was always interested in possession of the said unit as is evident from the documents on record and it is only after the repeated delays, the refund of the money deposited has been prayed for. The complainant has also stated in his reply to the application that he has only two properties, which he has bought from builders, which reads thus :-

“Flat No.2A, 1/26, RBI Colony, 2nd street, Shastrinagar, Chennai – 600 020, Tamil Nadu developed by M/s AAthreyam Property Development. The possession of the said flat was taken in February, 2004 and the said flat was purchased for the parents of the complainant so that they could be looked after by their relatives in Chennai.

Flat No.702/703, Jasmine Regency Garden, Plot 10, Sector 6, Kharghar, Navi Mumbai, Maharashtra. The possession of the same was taken over in 2007 and the complainant bought the said flat as he was continuing his career of financial and legal advisor in Mumbai.”

The complainant further stated that he was nearing retirement and he wanted to move to a peaceful and pollution free city and with the said intention, the apartment in Sector 105, Mohali was booked, hoping that the possession would be delivered within time i.e. by April, 2010 and he planned out everything accordingly but instead the Opposite Parties have been pushing the possession date further and further. The complainant further stated that the phrase “the complainant never had problems with the other developers” only meant that the properties mentioned were delivered on time unlike the present Opposite Parties. He further stated that the complainant never filed any other complaint before and has only bought the apartment from his residential purposes. The complainant further stated that he was very much interested in the said apartment but the inabililty of the Opposite Parties to hand over possession of the said unit has not only dashed all the post retirement planning but also forced him to seek refund. 

              After going through the record and averments of both the parties, we are of the view that the said application filed by the Opposite Parties deserves rejection because it is not necessary to explain each and every word by the complainant regarding the units. In his rejoinder, the complainant has clearly stated that he is a Financial and Legal Advisor by profession and he was referring to the Agreements which he has seen before advising his relations for investment. It is pertinent to note that the complainant specifically stated that he purchased the flat for his parents so that they could be looked after by their relatives in Chennai and the other flat purchased by him in Navi Mumbai only for continuing his career of financial and legal advisor in Mumbai. The complainant has specifically stated in his rejoinder that the said apartment purchased by the complainant for moving to a peaceful and a less polluted city unlike Mumbai where the complainant is presently residing. 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. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Parties, that the complainant 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. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

 

The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances. 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 Counsel for the Opposite Parties in this regard, being devoid of merit, is rejected.

                In view of above, the application filed by the Opposite Parties also stands rejected.

9.           The next question that falls for consideration, is, as to within which period possession of the unit was handed over to the complainant. Apartment Buyer’s Agreement was executed between the parties on 28.10.2014 (Annexure C-24) and as per Clause 21.1 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of allotment and further grace period of 90 days, after the expiry of three months for applying and obtaining the occupation certificate in respect of the Group Housing Complex. So, it is clearly proved that possession of the unit was to be delivered within a maximum period of 36 months from the date of allotment. In the present case, the Opposite Parties initially allotted unit No.G3/504 on 5^th floor in “The Views” at Mohali Hills, Sector 105, SAS Nagar, Mohali, Punjab vide provisional allotment letter dated 25.10.2006 (Annexure C-2). Thereafter, unit number was changed and now the Opposite Parties allotted unit No.H1/302 in the same project, as allotted earlier, vide provisional allotment letter dated 07.04.2007 (Annexure C-5). Therefore, the period of 36 months for handing over of possession counted from 07.04.2007 and the same expired on 06.04.2010  but the Opposite Parties failed to deliver possession of the unit, complete in all respects, to the complainant within the stipulated period, as mentioned in the Agreement or by the time, when the complaint was filed.

10.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.49,23,113/-, deposited by him. Admittedly, the complainant deposited the amount of Rs.49,23,113/- in respect of the unit, in question, as is evident from statement of account (Annexure C-26). It is also an admitted fact that the  Opposite Parties unable to deliver  possession of the unit, in question, within the stipulated period, as mentioned in the Agreement and by the time when the complaint was filed because the Opposite Parties clearly stated in para No.11 of their written statement that “the unit can be handed over to the complainant in July, 2017.” 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.

11.          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.49,23,113/-, 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. The Opposite Parties were charging heavy rate of interest (compounded @15% p.a.) as per Clause 20.1 of the Agreement, for the period of delay in making payment of installments.  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.49,23,113/-alongwith interest @15% p.a. compounded, from the respective dates of deposits till realization.

12.           As far as the plea taken by Counsel for the Opposite Parties at the time of arguments, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that it was ready with possession of the unit, to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or due to the failure of the Opposite Parties to give possession of the unit within the stipulated time or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the Opposite Parties, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.

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

14.          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.49,23,113/-, to  the  complainant, alongwith interest @15% p.a. compounded,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.
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% p.a. compounded, instead of @15% p.a. compounded, from the respective dates of deposits onwards, and interest @15%  p.a. compounded, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

15.          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).

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.

January  31, 2017.                                  Sd/-      

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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