Chandigarh

StateCommission

CC/160/2016

Inderjit Verma - Complainant(s)

Versus

Emaar MGF Land - Opp.Party(s)

Sh. Sandeep Bhardwaj, Adv.

07 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	160 of 2016
Date of Institution	:	22.04.2016
Date of Decision	:	07.09.2016

1. Mr.Inderjit Verma.
2. Mr.Manoj Verma.
3. Mr.Harish Verma.

All sons of Sh.Manohar Lal Verma and residents of House No.719, Sector 4, Panchkula, Haryana.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Pvt. Ltd., (Mohali Hills), 1st Floor,  Sector 17-C, SCO 120-122, Chandigarh-160017, through its Managing Director/Director/Authorized Representative.
2. M/s Emaar MGF Land Pvt. Ltd., ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director/ Director/ Authorized Representative.

              .... Opposite Parties No.1 and 2.

 

3. HDFC Limited SCO No.153-155, Sector 8C, Madhya Marg, Chandigarh,  through its Branch Manager.

….Performa Opposite Party No.3

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

Sh.Sandeep Bhardwaj, Advocate for the complainants.

Sh.Ashim Aggarwal, Advocate for Opposite Parties No.1 & 2.

Ms.Rupali Shekhar Verma, Advocate for Opposite Party No.3

 

PER PADMA PANDEY, MEMBER

 

                The facts in brief are that the complainants moved an application for a plot measuring 300 sq. yds., in the project of Opposite Parties No.1 and 2 named as Mohali Hills, Punjab  in Sector 105, for which, they paid an amount of Rs.10,35,000/- towards booking amount. However, vide provisional allotment letter dated 11.05.2007 (Annexure C-1), the complainants were allotted plot No.461, in Sector 109, Augusta Park in the said project and not in Sector 105. Total basic sale price of the plot was fixed at Rs.34,50,000/-. The complainants were also to pay External Development Charges (EDC) etc. in addition to the basic price of the plot. It was stated that the complainants, vide letter dated 29.05.2007 (Annexure C-2) requested Opposite Parties No.1 and 2 to change the plot in Sector 105 but instead of change of location of the plot, they sent copy of the Agreement (Annexure C-3) in respect of the unit, in question, and refused to change the location of the plot. Left with no alternative, the complainants had to sign the Plot Buyer’s Agreement dated 04.07.2007. It was further stated that as per Clause 8 of the Agreement, Opposite Parties No.1 and 2 were liable to deliver physical possession of residential plot, within a period of 2 years i.e. upto 03.07.2009. It was further stated that the complainants requested Opposite Parties No.1 and 2 to provide necessary documents, as they wanted to raise loan from Opposite Party No.3 but they filed to do so. It was further stated that surprisingly thereafter, the complainants were relocated to plot No.560 from plot No.461 on the pretext that land under plot no.461 is under litigation due to some dispute with the farmers. Addendum Agreement (Annexure C-10) was executed in respect of plot No.561, Augusta Greens, Mohali Hills, Sector 109.  Price of plot No.561 was fixed at Rs.40,50,354/-. It was further stated that as and when demands were made, the complainants made timely payment, as a result whereof, they were given rebate of 5% of the basic sale price. It was further stated that the complainants had paid the entire sale consideration to Opposite Parties No.1 and 2. Despite that Opposite Parties No.1 and 2 failed to give possession of plot to the complainants. It was further stated that vide letter dated 28.12.2009 (Annexure C-15) update of status of development was given to the complainants. It was further stated that possession of the plot was not offered to the complainants by the stipulated date. The complainants kept on approaching Opposite Parties No.1 and 2 for delivery of possession but they failed to do so. On 25.06.2014, Opposite Parties No.1 and 2 sent final settlement dues letter demanding Rs.9,26,136.84 without any justification. It was further stated that the demand made was illegal. It was further stated that the complainants sent letter dated 03.03.2015 (Annexure C-21), wherein, they brought their concern to the notice of the Opposite Parties No.1 and 2 but to no avail. However, vide letter dated 24.03.2015 (Annexure C-23), Opposite Parties No.1 and 2 informed the complainants that they had already offered possession of the plot in December, 2009. It was further stated that when the complainants visited the site to see the progress of development, they were surprised to see the same missing. Even basic amenities were not in existence there. The entries to the project were sealed by the Forest Department. Necessary permission and sanctions were not obtained by Opposite Parties No.1 and 2. It was averred that by neither delivering physical possession of plot, in question, to the complainants, and in the alternative by not refunding the amount deposited with interest,  Opposite Parties No.1 and 2 were not only deficient, in rendering service, but also indulged 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.        Opposite Parties No.1 and 2, in their joint written version, have taken objection regarding arbitration clause in the Agreement, and also they separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was stated that the complainants did not fall within the definition of a “consumer” as defined under Section 2(1)(d) of the Act because they purchased the plot for investment, as they are already having a house in Sector 4, Panchkula.  Pecuniary and territorial jurisdiction of this Commission was also disputed. It was pleaded that since possession of plot has already been offered to the complainants in the year 2009 vide letter dated 28.12.2009, after completing all the basic amenities and a reminder was also sent to the complainants on 16.12.2011 and, as such, the complaint having been filed in the year 2016, was palpably barred by time. Purchase of plot by the complainants, in the manner, referred to above, is not disputed. It was further stated that the complainants were relocated to the plot/unit, on their request only. It was admitted the provisional allotment letter was issued to the complainants vide letter dated 11.05.2007. It was further stated that as per Clause 8 of the Agreement,  it was agreed between the parties that the Company shall make endeavour to deliver possession of the plot, in question, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement). It was further stated that time was not the essence of contract. It was further stated that it was well within the knowledge of the complainants that for any delays, stipulated penalty has been provided in the Agreement, which safeguarded their rights. It was further stated that the total consideration of the new/present unit bearing No.109-AG-560-300 was Rs.40,50,354/-, out of which, the Company accepted an amount of Rs.39,80,850/- from the complainants. It was further stated that all the approvals were obtained by the Company for their project. It was further stated that Opposite Parties No.1 and 2 were in possession of all the necessary permissions, before possession of the plot, in question, was offered to the complainants. It was further stated that Opposite Parties No.1 and 2 were exempted from the provisions of the Punjab Apartment and Property Regulation Act, 1995, and, as such, completion certificate was not required to be obtained, at the time of offer or delivery of possession of the plot, in question. It was further stated that when the possession was offered to the complainants, on the said date, upon completion of the amenities, they did not accept the same, for the reasons best known to them, as a result whereof, they are liable to pay holding charges. It was admitted in para no.32 that the Forest Department has sealed certain entry points. There is adequate access to the plot. It was further stated that the RTI Information placed on record by the complainants has no evidentiary value as the same had been obtained from unauthorized personnel. It was further stated that Partial Completion Certificate (Exhibit OP/5) has been obtained in respect of the project, which proves that basic amenities were available at the site in the year 2009. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they had indulged into unfair trade practice. The remaining averments, were denied, being wrong.
3.        Opposite Party No.3, in its written statement, admitted that the complainants had availed loan from it, for making payment towards the said unit. It was pleaded that, in case, this Commission, comes to the conclusion that the complainants are entitled for refund of the amount deposited, Opposite Party No.3 shall have first charge/right, to seek apportionment of its dues. It was stated that complaint qua Opposite Party No.3, is liable to be dismissed, as neither deficiency in rendering service and adoption of unfair practice has been proved against it, nor any allegation with regard to the same has been leveled by the complainants.
4.        The complainants filed rejoinder, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.1 and 2. 
5.        The parties led evidence in support of their case.
6.        We heard Counsel for the parties and have gone through the evidence and record of the case, very carefully.
7.        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 Opposite Parties No.1 and 2, 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 Opposite Parties No.1 and 2, stands rejected.

8.         The objection taken by Counsel for Opposite Parties No.1 and 2, to the effect that the complainants being investors because they already having a house in Sector 4, Panchkula, did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It may be stated here that there is nothing, on the record, that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, 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  Opposite Parties No.1 and 2, mere bald assertion i.e. simply saying that the  complainants being investors, 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. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. 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 Opposite Parties No.1 and 2, therefore, being devoid of merit, is rejected.  
9.        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 the Agreement was executed between the parties at Chandigarh. Not only this, even almost all the documents/letters annexed by the complainants with their complaint, were also sent by Opposite Parties No.1 and 2 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, annexed by the complainants, with their complaint, 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 Opposite Parties No.1 and 2, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

10.         Another objection taken by Opposite Parties No.1 and 2, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainants have sought refund of an amount of Rs.39,80,850/- paid by them, towards price of the plot alongwith suitable interest from the respective dates of deposits, till realization;  compensation to the tune of Rs.5 lacs, for mental agony & physical harassment; to pay the amount of pre EMI and cost of litigation, to the tune of Rs.1 lac, aggregate value whereof [excluding the interest claimed] fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.
11.        The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not.  Opposite Parties No.1 and 2 placed reliance on letter dated 28.12.2009 (Annexure C-15) and Partial Completion Certificate dated 16.10.2015 (Exhibit OP-5) to prove that offer of possession of the plot was given to the complainants, with complete basic amenities. To prove that basic amenities were complete at the time of alleged offer of possession, Opposite  Parties No.1 and 2 in para no.36 of their joint written version, are relying upon Partial Completion Certificate dated 16.10.2015 (Exhibit OP-5). Now the question arises, whether possession of the plot was actually offered to complainants vide any letter or not, by Opposite  Parties No.1 and 2. Perusal of contents of letter dated 28.12.2009 (Annexure C-15) clearly goes to show that it was only an up-dation on the status of development work of the project given to the complainants. It was clearly written therein that development activities in all the three sectors 105, 108 and 109 are in full swing. Nothing cogent and convincing evidence has been placed on record by Opposite  Parties No.1 and 2 in the shape of certificates having been issued by an architects/engineers hired by them or completion/partial completion certificate obtained by them in the year 2009 that project was complete. Reliance placed by Opposite  Parties No.1 and 2 on the Partial Completion Certificate dated 16.10.2015 is going against them only. They cannot claim any right of Partial Completion Certificate dated 16.10.2015 to prove their stand that amenities were complete in the year 2009. On the other hand, the complainants have placed on record ample RTI Information to prove that Opposite  Parties No.1 and 2 were not in a position to offer possession of the plot in 2009 and even thereafter. RTI Information placed on record  by the complainants in respect of the project, in question, has gone unrebutted, placing on record any document to prove to the contrary.  Under similar circumstance, a similar question, in a similar project Mohali Hills,  came up for consideration before this Commission in Prabhujeev  Singh Bajaj Vs. Emaar MGF Land Limited, complaint no. 43 of 2016 decided on 29.06.2016, wherein, while partly allowing the complaint in favour of the complainants, this Commission held as under:-

“31.      However, the main grouse of the complainant is that, despite relocation to the said units, even then, actual physical possession thereof, was not offered to him, whereas, on the other hand, paper offer was made to him, vide letters dated 25.08.2014 and 07.11.2014, because when he visited the site after receiving the said letters, to see development and basic amenities, the same were found missing and besides  that, all entry points of the project, had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/sanction from it. Thus, in these circumstances, the principal question, which goes to the root of the case, and falls for consideration, is, as to whether, offer of possession made by opposite parties no.1 and 2, to the complainant, vide letters dated 25.08.2014 and 07.11.2014, in respect of the relocated units, could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder/opposite parties no.1 and 2. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by opposite parties no.1 and 2, to prove that when offer was made to the complainant, in respect of the units, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for opposite parties no.1 and 2, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. Opposite parties no.1 and 2 were also required to produce on record, a copy of the Completion Certificate (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to do so. It is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer.

                Secondly, the complainant has placed on record, copies of the RTI Information, relating to the said project, in question. Vide RTI Information dated 29.04.2014 Annexure C-31, it was clearly intimated by Greater Mohali Area Development Authority (GMADA), that opposite parties no.1 and 2, had not even applied to them for commission of sewerage treatment plant, water supply, electricity etc. Not only this, it is further evident from  RTI Information dated 26.02.2015 Annexure C-30, issued by the Punjab State Power Corporation Limited (PSPCL), that no regular electricity connection has been released in the sector, in question, wherein the plots are situated. The said RTI Information goes unrebutted by opposite parties no.1 and 2. Not even a single document has been brought on record to prove that the information relating to non-existence of basic amenities, mentioned in the said RTI Information is false, or that the said information was fabricated by the complainant. Had the said information been false or fabricated, opposite parties no.1 and 2, could have obtained certificate from the said Authorities, to say that the same had not been supplied from their Department, but they (opposite parties no.1 and 2) failed to do so. Thus, it could safely be said that the complainant has proved his case, that opposite parties no.1 and 2 did not even obtain permission to provide basic amenities such as water, electricity etc., till  29.04.2014 or 26.02.2015, the dates when RTI information aforesaid, was issued by the Authorities concerned.

                Not only this, it is also an admitted case, that entry points of the project had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/ sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2), in paragraph No.26 of their written version. Not only this, the said fact is further corroborated from the letter dated 15.04.2015 Annexure-4 (at page 190 of the file), sent by opposite parties no.1 and 2, to the Chief Administrator, GMADA, requesting it to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by opposite parties no.1 and 2, in the said letter that “…….we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. This admission of the opposite parties no.1 and 2, in the letter dated 15.04.2015 written to the Chief Administrator, GAMDA, itself clearly goes to prove that even till that date (15.04.2015), they  were not in a position, to deliver possession of the plot(s) to their customers, including the complainant, in the said project, on account of reason that the entries thereof  had been sealed by the Forest Department, stating it to be an “illegal access through the Forest Strip”,permissions/sanction, whereof has not been obtained by them. Not even a single piece of evidence has been brought on record, to prove that the said entry points have been got reopened by opposite parties no.1 and 2, after having obtained permission from the Authorities concerned. If it is so, then it remained unclarified by opposite parties no.1 and 2, as to when entry points of the project were sealed, how could they offer possession of the units, to the allottees, including the complainant, in the year 2014.

                A plea was also taken by opposite parties no.1 and 2 that only recently the Forest Department has served notice on them, alleging illegal access created by them, through the Forest land. To the contrary, perusal of RTI Information dated 05.05.2015 Annexure C-28 (colly.) (at pages 120 to 127 of the file) issued by the Government of Punjab, reveals that a court case with regard to dispute between the Forest Department and opposite parties no.1 and 2, is pending litigation before the Civil Court Kharar, since 03.07.2012, as opposite parties no.1 and 2 have violated Sections 29,33 and 63 of the Indian Forest Act 1927 and have also violated the directions passed by the Hon'ble Supreme Court of India, vide order dated 12.12.1996. The said RTI Information also goes unrebutted by opposite parties no.1 and 2. Thus, the matter with regard to entry points aforesaid, in respect of the said sector, in dispute, was an old dispute, between the Forest Department and opposite parties no.1 and 2, as they had not taken permission from the Competent Authorities, which fact was not disclosed by them, in their written version, filed before this Commission. 

                In view of above, it is held that the act of opposite parties no.1 and 2, in offering paper possession of the units, in question, vide letters 25.08.2014 and 07.11.2014, in the absence of development work; basic amenities at the site; non-obtaining of completion certificate, and also entry points of the project being sealed/closed by the Forest Department, amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the offer of possession made by opposite parties no.1 and 2, vide letters dated 25.08.2014 and 07.11.2014 is nothing, but a paper possession, which is not sustainable, in the eyes of law.

32.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It may be stated here that since it has been frankly admitted by opposite parties no.1 and 2, in number of paragraphs of their written statement that offer of possession of the plot(s) (which has been held to be paper possession), sold to the complainant, in the manner explained above, was made for the first time on 25.08.2014 and thereafter on 07.11.2014, he could file the complaint, within 2 years, from those dates, as such, even if the date 25.08.2014, is taken as first cause of action according to opposite parties no.1 and 2, the complaint having been filed on 04.02.2016,  is filed within the limitation, as prescribed under 1986 Act.

                Not only this, since it has been held by this Commission, that offer so made by opposite parties no.1 and 2, was nothing but a paper possession, and till date the complainant  is empty handed as neither actual physical possession of the plots was delivered, for want of development work; basic amenities at the site, as also the entry points had been sealed by the Forest Department, as they  failed to take requisite permissions/sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2), in their written version nor amount deposited was refunded to him alongwith interest, as such, there is continuing cause of action, in favour of the complainant, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 andMeerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). 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  opposite parties no.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.”

Thus it is held that the complaint filed by the complainants is not barred by time. The objection of Opposite  Parties No.1 and 2 in this regard is rejected. 

12.        Another objection raised by Counsel for Opposite  Parties No.1 and 2 that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the plot within maximum period of three 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 plot will be delivered by Opposite Parties No.1 and 2, within a period of maximum three years, subject to force majeure circumstances or reason beyond the control of Opposite Parties No.1 and 2. In the instant case, Opposite Parties no.1 and 2 did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by Opposite Parties No.1 and 2 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, Opposite Parties No.1 and 2 were bound to deliver possession of the unit, within a maximum period of three years from the date of execution of the same, as such, time was,  unequivocally made the essence of contract.

              Even otherwise, Opposite Parties No.1 and 2 cannot evade their liability, merely by saying that since the word tentative/ proposed/tentative 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 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 Opposite Parties No.1 and 2 in this regard also stands rejected.

13.        The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.39,80,850/-, deposited by them. It is an admitted fact that Opposite Parties No.1 and 2 are unable to deliver  possession of the unit, in question, for want of basic amenities etc.  and firm date of delivery of possession of the unit, could not be given to them (complainants). It is well settled law that the purchaser(s)/allottee(s) cannot be forced for relocation to any other unit, unless and until they wish to do so. The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the plot purchased by them. Opposite Parties No.1 and 2, 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, Opposite Parties No.1 and 2 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 not in dispute that an amount of Rs.39,80,850/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by Opposite Parties No.1 and 2, for their own benefit. There is no dispute that for making delayed payments, Opposite Parties No.1 and 2 were charging heavy rate of interest (compounded @15% p.a.) 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.39,80,850/- alongwith interest compounded @15% p.a., from the respective dates of deposits till realization. 
15.        As far as the plea taken by Opposite Parties No.1 and 2, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties No.1 and 2) case, that they were ready with possession of the 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 Opposite Parties No.1 and 2, 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 Opposite Parties No.1 and 2, in this regard, has no legs to stand and is accordingly rejected.
16.        No other point, was urged, by Counsel for the parties.
17.        For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 and 2 are jointly and severally directed as under:-
    1. To  refund   the  amount Rs.39,80,850/-, to  the complainants, alongwith interest compounded @ 15% p.a., from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
    2. To pay compensation, in the sum of Rs.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 Opposite Parties No.1 and 2 shall be liable to pay the amount mentioned in Clause (i) with interest compounded     @18% p.a., instead of interest compounded @ 15% p.a., from the respective dates of deposits, till realization, and interest compounded @15% p.a., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

              Since we are refunding the whole deposited amount to the complainants alongwith interest, compensation and litigation expenses, therefore, they are not entitled to claim the other relief i.e. to pay the amount of pre EMI, mentioned in the prayer clause of the complaint.

 

18.        The complaint qua Opposite Party No.3 stands dismissed.
19.        However, it is made clear that, if the complainants have 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 them (complainants).
20.        Certified Copies of this order be sent to the parties, free of charge.
21.        The file be consigned to Record Room, after completion.

Pronounced.

September 7, 2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

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