Chandigarh

StateCommission

CC/166/2014

Dilawer Singh - Complainant(s)

Versus

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

Gaurav Bhardwaj

20 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	166 of 2014
Date of Institution	:	25.11.2014
Date of Decision	:	20/02/2015

 

Dilawer Singh, son of S.Surjeet Singh (Permanent R/o H.No.22370, Shant Nagar, Civil Station, Bathinda), (Earlier R/o H.No.549, Sector 11, Chandigarh), Presently R/o Flat No.313, Second Floor, Block-17, United Co-operative Housing Society, Sector 68, Mohali.

……Complainant

V e r s u s

1. Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh-160017, through its Manager.
2. Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through Managing Director Sh. Sarwan Gupta.

              .... 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 the complainant was looking for a suitable residential accommodation/plot, at Mohali. As such, the complainant, applied to the Opposite Parties, vide application  No.822, for the residential plot, and paid a sum of Rs.10,35,000/-, as booking amount. Vide allotment letter dated 09.05.2007 Annexure C-1, the complainant was allotted plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, @Rs.11,500/- per square yard, plus (+) External Development Charges of Rs.1,69,104/- plus (+) Preferential Location Charges of Rs.4,31,250/-.  The basic sale price of the said residential plot was to the tune of Rs.34,50,000/-. Thus, the total sale consideration, in the sum of Rs.40,50,354/-, was required to be paid by the  complainant.

2.       Plot  Buyer's Agreement dated 20.06.2007, Annexure C-2 (colly.), in respect of plot No.385, Augusta Park, Sector 109, Mohali, Punjab, was executed between the parties. The complainant opted for time linked payment plan, attached with the said Agreement, at page 15 of the file.
3.       It was stated that, as per Clause 8 of the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2 (colly.), 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 two years, but not later than three years, 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 three years, 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.
4.       Thereafter, as per the installment payment plan, till 16.03.2009, the complainant, in all, deposited an amount of Rs.38,77,855/-, towards part price of the said plot. He, thus, qualified for waiver of 5% of the basic sale price.
5.       It was further stated that the complainant patiently waited for the delivery of physical possession of the plot, in his favour. It was further stated that when possession of the plot, in question, was not offered, by the stipulated date, the complainant made various requests to the Opposite Parties, to apprise him about the status of the project, but to no avail. The complainant was told to wait for sometime. After waiting for sometime, the complainant requested the Opposite Parties to deliver physical possession of the plot, in question, but to no avail.
6.       It was further stated that, on the other hand, the Opposite Parties sent letter dated 10.09.2012, intimating the complainant that due to non-availability of construction material, possession of the plot, in question, would be delayed.  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. However, till date, neither possession of the plot, in question, was delivered to the complainant, nor the amount deposited was refunded to him. Various letters were also written by the complainant, in the matter, but to no avail. It was further stated that the project floated by the Opposite Parties, was just a farce.
7.       It was further stated that the huge amount of Rs.38,77,855/-, deposited by the  complainant, towards part price of the plot, in question, was utilized by the Opposite Parties, as a result whereof, he was caused financial loss. 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 him.
8.       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 refund the amount of Rs.38,77,855/-, alongwith interest @18% P.A., from the respective dates of deposits, till realization; pay compensation to the tune of Rs.10 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.55,000/-.
9.       The Opposite Parties, put in appearance on 01.01.2015, and filed their written version, on 13.02.2015. In the written version, it was pleaded by the Opposite Parties, that the cause of action, accrued in favour of the complainant, on 19.06.2010, when the possession of plot No.385, in question, was to be offered to him but was not offered. It was further pleaded that the complainant could file the complaint, within 2 years, from 19.06.2010. It was further pleaded that the complaint having been filed on 25.11.2014, was palpably 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 he 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 pecuniary 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, and, in case of any dispute, the matter was to be referred to the Arbitration. It was further pleaded that the complaint was bad for non-joinder of HDFC Limited Bank, as necessary party, from which the complainant had obtained loan, in respect of payment of instalments of the plot, in question. It was admitted that the complainant applied to the Opposite Parties, vide application  No.822, for the allotment of a residential plot, and paid a sum of Rs.10,35,000/-, as booking amount. It was also admitted that the complainant was allotted plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, @Rs.11,500/- per square yard, plus (+) External Development Charges of Rs.1,69,104/- plus (+) Preferential Location Charges of Rs.4,31,250/-. The basic price of the plot was, thus, to the tune of Rs.34,50,000/-. It was also admitted that, as per the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2 (colly.), possession of the plot, in question, was to be delivered to  the  complainant, within a period of 2 years, but not later than three years, 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 20.06.2007, Annexure C-2 (colly.), which safeguarded his rights. It was further admitted by the Opposite Parties that the possession of plot No.385, Augusta Park, Sector 109, Mohali, 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.385, is located, have not been completed, the complainant could be allotted some other plot, in the project. It was further stated that possession of the plot, in question, could not be delivered on account of the reasons beyond the control of the Opposite Parties, i.e. ban on mining, in the State of Punjab, which act fell under the force majeure circumstances. It was further stated that, in case, the complainant sought refund of the amount, deposited by him, towards the said plot, he would lose considerable amount, on account of cancellation and forfeiture, as per Clause 2 (f) of the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2 (colly.). 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.
10.       The complainant submitted his affidavit, in support of the averments, contained in the complaint, by way of evidence, alongwith which, a number of documents were attached.
11.       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 21.01.2015, in respect of payment of the said plot, made by the complainant, was attached. 
12.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.   
13.       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 prices, does not carry any weight and is liable to be rejected. It was clearly averred, by the complainant, in paragraph no.1 of the complaint, supported by his affidavit, by way of evidence, that he was willing to own a residential plot, as a result whereof, he intended to purchase the same, from the Opposite Parties. Not only this, in paragraph no.7 of the complaint, it was further averred by the complainant, that he had taken a loan from the HDFC Bank, in anticipation that possession of the plot, in question, would be delivered, on time, and after constructing the same, he would reside therein, and would save the rent, being paid by him, to the landlords, as a result whereof, he would easily repay the loan instalments. 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 him, 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.  
14.       The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. No doubt, it was submitted by the Counsel for the Opposite Parties, that since the Plot Buyer's Agreement, Annexure C-2 (colly.), in respect of plot No.385, Augusta Park, Sector 109, Mohali,  was executed on 20.06.2007 and the possession thereof, (plot No.385), was to be handed over by 19.06.2010, the cause of action accrued to him on that date (19.06.2010) and the complaint having been filed on 25.11.2014, was palpably barred by time. It may be stated here that, according to the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2 (colly.), the Opposite Parties were to hand over physical possession of the plot, in favour of the complainant, within a period of two years, but not later than three years, from the date of execution thereof (Agreement).  The Opposite Parties, frankly admitted in paragraph Nos.6,10 and 12 of their written version, that the possession of plot No.385, Augusta Park, Sector 109, Mohali, allotted in favour of the complainant, vide Plot Buyer's Agreement dated 20.06.2007, Annexure C-2 (colly.), could not be handed over to him. Thus, neither the possession of plot No.385, Augusta Park, Sector 109, Mohali, was offered, nor delivered to the complainant, by the stipulated date, nor till the date of filing the complaint nor the penalty, as provided in the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2 (colly.), was paid to him, nor in the alternative the refund of Rs.38,77,855/-, deposited by him, was made to him. There was, thus, a continuing cause of action, in favour of the complainant. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380,  wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement, made in the advertisements of the petitioner, knowing fully well that the land, in question, was under litigation. Consumer complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon'ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
15.       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 20.06.2007, Annexure C-2 (colly.).  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 20.06.2007, Annexure C-2 (colly.), 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.

16.       The next question, that falls for consideration, is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that price of the plot, in question,  inclusive of External Development Charges (EDC) and Preferential Location Charges (PLC) was  Rs.40,50,354/-. The complainant has sought refund of the amount of Rs.38,77,855/-, alongwith interest @18% P.A., from the respective dates of deposits; compensation to the tune of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.55,000/-. The aggregate value of the services/goods/refund sought, plus (+) compensation, and cost, claimed by the complainant, in the complaint, [excluding the interest claimed @18% P.A. aforesaid], came to be around Rs.49,32,855/- and, as such, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary 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.
17.       The next question, that arises for consideration, is, as to whether, interest @18% P.A., claimed by the complainant, in the manner, referred to above, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission.  In Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/-it (amount) will exceed Rs.20 lakhs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/ appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

“Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.

Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs”.

18.       The observations made, in the aforesaid case, are fully applicable, to the facts of the instant case. In the instant complaint, interest @18% P.A., claimed by the complainant, in the manner, referred to above, was not required to be added, for determining the pecuniary Jurisdiction of this Commission. The question thus stands answered, in the manner, referred to above.
19.       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 dated 20.06.2007, Annexure C-2 (colly.),  in respect of plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, was executed between the parties, on 20.06.2007. 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 period of two years, but not later than three years, 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.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, in favour of the  complainant, within three years, from the date of execution of the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2 (colly.). 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 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 the said plot, has been paid by the  complainant, but   possession of the same (plot No.385), was not delivered to him, as the same had not been developed.  Still the Opposite Parties have not given any exact date of delivery of possession of plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, to the complainant. Since, neither possession of plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, which was allotted to the complainant, was offered to him (complainant) by the stipulated date nor by the time, the complaint was filed, nor till date, he (complainant) was right, in seeking refund from the Opposite Parties. By making a misleading statement, that possession of plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, would be given to the complainant, within the maximum period of three years, from the date of execution of the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2 (colly.), 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.
20.       No doubt, the Counsel for the Opposite Parties, placed reliance on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, a case decided by the Hon’ble Supreme Court  to contend that time was not the essence of contract. The facts of  Smt. Chand Rani's case (supra), are distinguishable, from the facts of the instant case. Smt. Chand Rani's case (supra), related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms, in the Agreement. It was, under these circumstances, held, in the said case, that time was not the essence of contract. Whereas, in the instant case, as per Clause 8 of the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2 (colly.), the Opposite Parties were to hand over physical possession of the residential plot, within a period of 2 years, and not later than three years, from the date of execution of the same, i.e. latest by 19.06.2010. Even after the expiry of more than six years, from the date of allotment of plot, and more than about four years, from the stipulated date, the possession thereof, was not delivered to the complainant. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Counsel for the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
21.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of amount of Rs.38,77,855/-, deposited by him, towards the part price of plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, in the manner, referred to above. As stated above, the Opposite Parties, failed to deliver possession of plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, 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.38,77,855/-, deposited towards the part price of plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab,  without rendering him any service. Under these circumstances, the complainant was left with no alternative, than to ask for the refund of sale consideration paid by him. In our considered opinion, the complainant is entitled to the refund of amount of Rs.38,77,855/-, deposited by him, towards the part price of plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab. By not refunding the amount, aforesaid, deposited by the complainant, the Opposite Parties were deficient, in rendering service.
22.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by him, if so, at what rate. The amount of Rs.38,77,855/-, towards the part price of plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, was deposited by the complainant. The complainant was deprived of his hard earned money, to the tune of Rs.38,77,855/-, on the basis of misleading information, given by the Opposite Parties, that he would be handed over legal physical possession of plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, on or before 19.06.2010, 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.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. In case of delay, in deposit of instalment(s), the Opposite Parties had been charging compound interest @15% P.A., from the complainant, as per Clause 3 of the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2 (colly.). It is, therefore, held that the Opposite Parties, by neither delivering possession of the plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, by the stipulated date, nor refunding the amount to the complainant, was not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant, is, thus, entitled to the refund of Rs.38,77,855/-, alongwith interest @12% P.A., from the respective dates of deposits.
23.         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.38,77,855/-, i.e. more than 95%, towards the price of plot no.385, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, no progress was made by the Opposite Parties, at the site, by the stipulated date. The complainant had purchased the said plot, to have a roof over his head and his family, by constructing a house thereon, but his hopes were dashed to the ground, when possession of the same was not even offered to him, after about 7 years of the allotment thereof, 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.
24.       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 20.06.2007, Annexure C-2 (colly.), as per Clause 8 of the same (Plot Buyer’s Agreement), in case of delay, in the delivery of physical possession of 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 3 (three years), 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 complainant, prayed for the delivery of physical possession of the residential plot. In the instant case, prayer for the refund of amount, was made by 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. This Clause could be invoked by the Opposite Parties, only, in the event, the complainant had sought relief of delivery of physical possession of the residential plot. As stated above, the hard earned money of the complainant was used by the Opposite Parties, for investment, for a long time. He 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 20.06.2007, Annexure C-2 (colly.). Had the complainant prayed for possession of the residential plot, in question, the matter would have been different. The complainant, in our considered opinion, as stated above, is entitled to the refund of amount, alongwith interest @12% P.A.  
25.       No other point, was urged, by the Counsel for the parties.
26.        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.38,77,855/-, 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. HDFC Limited, Mohali shall have the first charge, on the amount, to be refunded to the complainant, by the Opposite Parties, to the extent the same (amount) is due to it, against him (complainant).
    5. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) with interest @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/-.
27.        Certified Copies of this order be sent to the parties, free of charge.
28.       The file be consigned to Record Room, after completion

Pronounced.

20/02/2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

MEMBER

 

 

Rg.