Chandigarh

StateCommission

CC/689/2016

Rajeev Singh Walia - Complainant(s)

Versus

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

S.s.Gill, Adv.

21 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	689 of 2016
Date of Institution	:	14.10.2016
Date of Decision	:	21.03.2017

 

1. Rajeev Singh Walia s/o Sh. Raghbir Singh Walia r/o H.No.2300, Sector 71, Mohali, currently residing in 20764, Lugano Way, Northridge, California 91326, United States of America.
2. Rajbir Kaur Walia w/o Sh. Rajeev Singh Walia r/o H.No.2300, Sector 71, Mohali, currently residing in 20764, Lugano Way, Northridge, California 91326, United States of America.

……Complainants

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 its 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 complainants.

Sh.  Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainants jointly purchased plot for their family and personal use i.e. plot No.40 measuring 500 sq. yds. in the project of the Opposite Parties under the name and style of “Central Greens” situated at Sector 105, Mohali in resale from the original allottee Sh. Ajjayya Gulati. Plot Buyer’s Agreement was executed between the original allottee and the Opposite Parties on 28.12.2007 (Annexure C-2). The said plot was endorsed in favour of the complainants on 24.04.2008. The plot was purchased by the complainants for the total consideration of Rs.73,78,990/-. According to Clause 8 of the Agreement, possession was to be delivered within a period of 2 years from the date of execution of the Agreement but not later than 3 years and in case the Opposite Parties failed to hand over the same, it would be liable to pay @Rs.50/- per sq. yd. per month after the stipulated date of possession, as per the Agreement. The complainants cleared all the payments due towards the consideration of the said plot vide receipts (Annexures C-3 colly. The possession of the said plot was to be handed over by 27.12.2010. It was further stated that the complainants made several correspondences with the Opposite Parties about the stipulated date of delivery of possession, asking them about the date of delivery of possession of the said plot but they were always non-committal about the date of delivery of possession. Copy of the email is Annexure C-4. It was further stated that the complainants     visited    to     India        in    September, 2016    but    the    Opposite   Parties expressed their inability to hand over possession of the said                                                      plot. After inquiring about the reasons, the complainants came to know that the Opposite Parties did not have the land for the said plot and such plot number was non-existent in the master plan of the said sector duly approved by the competent authorities. Copy of master lay-out plan is Annexure C-5.  It was further stated that the Opposite Parties even charged PLC for a non-existent plot and they kept mum about the non-existence of the plot for the last 8 years. The complainants tried to settle the matter and, as such, they sent written representation to the Opposite Parties on 29.09.2016 (Annexures C-6 & C-7). It was further stated that the complainants purchased two plots i.e. one in Sector 105, Mohali and another in Augusta Park, Sector 109, Mohali , for their sons (who were minor at the time of purchase) for keeping their roots attached to the motherland. It was further stated that possession of the said plot has been delayed by almost more than six years and moreover, the Opposite Parties kept on taking the payments for the non-existent plot. 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 complainants, 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 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 stated that this Commission has no territorial jurisdiction to try the complaint as the property is located at Mohali and the registered office of the Opposite Parties is at New Delhi Delhi. It was further stated that this Commission has no pecuniary jurisdiction to try and entertain the complaint, as the value of claim + compensation including interest claimed exceeds Rs.1 crore, as per the judgment of the Larger Bench of Hon'ble National Consumer Disputes Redressal Commission, New Delhi in Ambrish Kumar Shukla & 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd. – CC 97/2016. It was further stated that the complainants did not fall within the definition of “Consumer” under Section 2(d) of the Consumer Protection Act, 1986, as they admittedly purchased two plots in Sector 105 and another in Sector 109 with the Opposite Parties and the complainants themselves are residents of USA, which shows that the plots purchased by them for speculation/investment/commercial purposes. It was further stated that there was no definitive agreement stating that possession would definitely be delivered within a period of 3 years. The Opposite Parties had only endeavored to hand over possession within 24 to 36 months and there was no specific promise for the same. It is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract more so when there is penalty clause under the Agreement for any alleged delays. It was further stated that similar claim with respect to the same property is also pending before the NRI Commission, Sector 9, Chandigarh, which fact has not been disclosed by the complainants (Exhibit OP/2).  It was admitted regarding purchase of the unit by the complainants from Ajayya Gulati (original allottee) and endorsement in their name. It was further stated that the amount of Rs.1,25,000/- was received by the Opposite Parties as transfer charges because the complainants bought the plot from the secondary market. It was further stated that the demand for last installment, as per the payment plan, was not raised as OTRP waiver/benefit was given. It was further stated that all the emails of the applicant had been duly replied to by the Opposite Parties and offer to relocate had also been given. 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 Parties led evidence, in support of their case.

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

5.           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.

6.           The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that Plot Buyer’s Agreement (Annexure C-2) was executed between the initial allottee (Ajayya Gulati) and the Opposite Parties, at Chandigarh. Not only this, provisional allotment letter (Annexure C-1) and receipts (Annexure C-3 colly.) were sent by the Opposite Parties from their Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017”. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

7.           Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainants sought refund of an amount of Rs.72,16,490/- deposited by them, alongwith interest @ 18% compounded p.a. from the respective dates of deposits ;  compensation to the tune of Rs.2,50,000/- for mental agony & 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 complainants, 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 Opposite Parties, to the effect that the complainants purchased two plots in Sector 105 and another in Sector 109 and they themselves are resident of USA, which shows that the complainants purchased the aforesaid plots for speculation/investment/commercial purpose, as such, they did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act. After going through the record, we are not agreeing with the contention of the Counsel for the Opposite Parties. It is clearly stipulated from the memo of parties of the complaint that they being husband & wife are resident of California, USA and they admitted that they purchased two plots in the project of the Opposite Parties, one in Sector 105, Mohali and another in Augusta Park, Sector 109, Mohali. The complainants in para No.9 of their complaint has clearly stated that both the plots were purchased for their sons, who were minor at the time of purchase, for keeping their roots attached to the motherland. It is not the case of the Opposite Parties that the complainants concealed regarding the issue of purchase of two plots in different sectors the project of the Opposite Parties.  Even otherwise, the mere fact that both the plots purchased by the complainants were residential plots, which were allotted, in favour of the complainants, sufficient to prove that it was to be used for the purpose of residence, by the complainants. There is nothing, on the record, that the complainants are property dealers, and deal in the sale and purchase of property. Moreover, with regard to the objection taken by the Counsel for the Opposite Parties that the complainants are residents of USA, purchased the plots for speculation/investment/commercial purpose, has no value, at all because even no law debars an NRI, who basically belonged to India, to purchase a residential property in India. Under similar circumstances, the Hon'ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

              Even at the time of arguments, Counsel for the Opposite Parties rely upon the judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in Consumer Complaint No.1326 of 2015 and IA No.7789/2015 titled as “Manohar Damecha Vs. Lavasa Corporation Limited”. After going through the judgment, referred by the Counsel for the Opposite Parties, we are of the view that the facts of the said case is different with the present case because in that case, the dispute is with regard to 6 plots, which included shop also. It is a matter of common knowledge that middle class person cannot purchase 6-7 plots because his/her reach is so limited. In the present case, the complainants admitted regarding purchase of two plots in the project of the Opposite Parties and the dispute in the present complaint is only with regard to plot in Sector 105, Mohali only. The complainants being residents of USA purchased two plots after earned their hard earned money. Even any common man, who after spending so many years in India, is now resident of USA with the hope that his/her roots i.e. children attached to their motherland (India). Moreover, at the time when the complainants purchased the plot, their children were minor, so it was not possible for them to purchase the said plots in the name of their children. Thus, in the absence of any cogent evidence, in support of the objection raised by the Counsel for the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that, being residents of USA, the unit, in dispute and another in other sector were purchased by the complainants, by way of investment, with a view to earn profit, in future. The complainants, thus, fall 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.

9.           With regard to the objection taken by the Opposite Parties that the similar claim with respect to the same property is pending before the NRI Commission and the complainants by filing multiple cases are trying to put undue pressure on the Opposite Parties in order to secure monetary gain, has no value, at all because the Opposite Parties annexed copy of the complaint filed by the complainants before Punjab State Commission for NRI’s, at Chandigarh (Exhibit OP/2), which clearly shows that the same was filed by the complainants with regard to registration of FIR against respondent No.2 but the present case involves the question of only non delivery of possession of the unit and as such the complainants sought getting registration of FIR against respondent No.2 but in the present case, before this Commission, the complainants sought refund of the deposited amount along with interest, compensation and litigation expenses. So, we are not agreeable with the objection taken by the Opposite Parties and the same stands rejected.

10.          Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company shall try and endeavour to deliver possession of the unit/plot within maximum period of 3 years, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 8 of the Agreement that possession of the unit will be delivered by the Opposite Parties, within a period of two years from the date of execution of the Agreement but not later than 3 years, subject to force majeure circumstances or reason beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 3 years from the date of execution of the Agreement and, as such, time was,  unequivocally made the essence of contract.

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

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

In view of above, the plea of the Opposite Parties in this regard also stands rejected.

11.         The next question, that falls for consideration, is, as to within which period, the delivery of the unit, was to be given to the complainants. It is clearly proved from Clause 8 of the Agreement that possession of the unit was to be delivered to the allottee within a maximum period of three years from the date of execution of the Agreement i.e. latest by 27.12.2010 and after receipt of the huge amount from the complainants, the Opposite Parties failed to deliver possession of the unit, complete in all respects to the complainants, within the stipulated time frame, as mentioned in the Agreement or by the time when the complaint was filed, which amounted to deficiency in service and indulgence into unfair trade practice.

12.          The next question, that falls for consideration, is, as to what amount was deposited by the complainants, in respect of the plot, in question. The complainants sought refund of entire payment made by them i.e. Rs.72,16,490/- but on the other hand, the Opposite Parties annexed statement of account (Exhibit OP/3), which shows that the complainants deposited the total amount of Rs.70,91,490/-. It is pertinent to note that the complainants are subsequent buyer and they purchased the plot from Sh. Ajjayya Gulati, which was endorsed in their favour on 24.04.2008.  The Opposite Parties stated in their written statement that the complainants paid an amount of Rs.1,25,000/- as transfer charges for transfer of the plot in their name. So, if we calculate the amount of receipts annexed by the complainants, except the amount of Rs.1,25,000/-, which was paid by them as transfer charges, it is clearly proved that the complainants deposited the total amount of Rs.70,91,490/-.

13.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the deposited amount. It is clear from the aforesaid paragraph that the complainants deposited the total amount of Rs.70,91,490/- but after receipt of the huge amount, the Opposite Parties were unable to deliver possession of the unit/plot, in question, complete in all respects to the complainants, within the stipulated timeframe, as mentioned in the Agreement. The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit, in question. The  Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

14.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is admitted from the statement of account that an amount of Rs.70,91,490/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the  Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the  Opposite Parties were charging heavy rate of interest (compounded @15%) as per Clause 3 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  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.70,91,490/- alongwith interest @15% p.a. compounded, from the date of endorsement i.e. 24.04.2008 till realization. 

15.          As far as the plea taken by the Opposite Parties, 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 they were ready with possession of the unit/plot, to be delivered to the complainants, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and are 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 complainants themselves are rescinding the contract, as such, they are 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.

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

17.          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.70,91,490/-, to  the complainants, alongwith interest compounded @ 15% p.a., from the date of endorsement i.e. 24.04.2008 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.2,00,000/- for causing mental agony and harassment, to the complainants, 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.50,000/- to the complainants.
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 compounded     @18% p.a., instead of interest compounded @ 15% p.a., in the manner ordered above, 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.

 

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

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

Pronounced.

March 21, 2017.                              Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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