Chandigarh

StateCommission

CC/23/2021

Gurvinder Kaur - Complainant(s)

Versus

Motiaz Royale Estate Pvt. Ltd. - Opp.Party(s)

Rana Gurtej Singh Adv.

04 Aug 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	23 of  2021
Date of Institution	:	22.09.2021
Date of Decision	:	04.08.2022

 

Gurvinder Kaur W/o Harmohinder Singh R/o House No. 633 Sector 20-A, Chandigarh 160020

… Complainant

 

V e r s u s

 

1. Motiaz Royale Estate Private Limited Motia Group, Ambala Chandigarh Highway District Zirakpur, Punjab 140603 through its Manging Director/Authorised Signatory
2. Neeraj Kansal, Director, Motiaz Royal Estate Private Limited Motia Group, Ambala-Chandigarh Highway District Zirakpur, Punjab 140603
3. Parveen Kansal, Director, Motiaz Royal Estate Private Limited Motia Group, Ambala-Chandigarh Highway District Zirakpur, Punjab 140603
4. Payara Lal Garg, Motiaz Royal Estate Private Limited Motia Group, Ambala-Chandigarh Highway District Zirakpur, Punjab 140603
5. Daljit Singh, Director, Motiaz Royal Estate Private Limited Motia Group, Ambala Chandigarh Highway District Zirakpur, Punjab 140603
6. Bikram Singla Director, Motiaz Royal Estate Private Limited Motia Group, Ambala-Chandigarh Highway District Zirakpur, Punjab 140603
7. Davinder Kumar Director, Motiaz Royal Estate Private Limited Motia Group, Ambala-Chandigarh Highway District Zirakpur, Punjab 140603
8. Vikas Gupta, Director cum Authorised Signatory, Motiaz Royal Estate Private Limited Motia Group, Ambala-Chandigarh Highway District Zirakpur, Punjab 140603
9. Indu Gupta, Director, Motiaz Royal Estate Private Limited Motia Group, Ambala-Chandigarh Highway District Zirakpur, Punjab 140603

(Email for OP 1 to 9; royale.estate2020@gmail.com)

10. Altus Space Builders Private Limited registered office at SCF 22, 1 floor, Phase-10, SAS Nagar Mohali, through its Managing Director/ Authorised Signatory (Email: info@altusspacebuilders.in).

…..Opposite parties

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                           MRS. PADMA PANDEY, MEMBER.

                           MR.RAJESH K. ARYA, MEMBER.

 

Present:-               Ms.Manjit Kaur, Advocate proxy for Sh.Rana Gurtej Singh,    Advocate for the complainant.

Sh. Anuj Kohli, Advocate alongwith Sh.Jatin Bansal, Advocate for the opposite parties No.1 to 9.

Sh. N.P. Chandel, Advocate for opposite party no10.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  

                   It is the case of the complainant that, in the year 2011,  she had booked a plot measuring 350 square yards in the project of the opposite parties, named “Muirwoods Ecocity,  New Chandigarh, Mullanpur, Punjab. Basic price of the said plot was fixed at Rs.14 lacs, which was paid by her on 17.02.2012, vide cheque dated 25.11.2011. Resultantly, Sale Agreement, Annexure C-1 in respect of the said plot, measuring 350 square yards, was executed between the complainant and opposite party no.1 on 17.02.2012,. Thereafter, on 16.06.2014, the complainant was informed by the opposite parties no.1 to 9 that the patch of land, on which the plot in question is located has been approved by the Government of Punjab vide letter dated 04.03.2014. As such, she was asked to make payment of Rs.2,45,000/- towards Change of Land Use (CLU), which was paid by her vide demand draft dated 04.07.2014, Annexure C-4. Despite the fact that substantial amount referred to above was paid by the complainant, yet, neither plot no. was allocated nor possession thereof was offered to her. Thereafter, to the utter shock of the complainant, she was offered two plots of 200 square yards each instead of plot of 350 square yards and was also asked to make payment of Rs.9,91,250/- under the grab of EDC, IDC, Cess etc. When the complainant asked to give breakup of the said amount, she was promised that it will be sent to her. Believing the said promise, she paid another amount of Rs.9,91,250/- to the opposite parties, vide cheque dated 20.01.2021, Annexure C-5. After a huge delay, plot buyer agreement Annexure C-7 was sent to the complainant, which was dated 02.06.2021 for her signatures and that too in respect a plot bearing no.1042, measuring 214.67 square yards, instead of 350 square yards. It has been stated that decreasing the area of plot to 214.67 square yards was illegal and arbitrary act on the part of the opposite parties. The complainant found that it was mentioned in the said agreement that possession of the said plot will be delivered within a period of 36 months from the date of its execution i.e. 02.06.2024 (the date of execution of agreement being mentioned as 02.06.2021). Even other terms and conditions contained in the said agreement, which had been executed after a huge delay were oppressive. It has been pleaded that in this manner, the opposite parties have imposed upon the complainant, unreasonable charge, obligation and condition which had put her to disadvantage and as such, her case falls under Section 2 (46) of CPA 2019 i.e. “unfair contract”. It has been pleaded that thereafter the complainant visited the office of the opposite parties, number of times, and also sent various emails/letter, with a request to deliver possession of plot measuring 350 square yards and also to redress her other grievances but to no avail. When the grievances of the complainant were not redressed, she served legal notice dated 23.07.2021, Annexure C-9 upon the opposite parties but to no avail. Hence, this complaint has been filed by the complainant seeking following reliefs:-

 

1. Declare the agreement dated 17.02.2012 (Exhibit C-1) as an 'unfair contract';
2. Direct the Ops to deliver actual physical possession of the Plot i.e. plot measuring 350 square yards in Mullanpur, Punjab with all basic amenities after obtaining completion certificate from the competent authority;
3. Direct the Ops to pay delay interest by way of Simple Interest @ 24% per annum on the entire deposited amount to the complainant from the date of execution of the Agreement i.e. 17.02.2012 till actual and physical delivery of possession of the Plot;
4. Direct the Ops to pay Rs.4,00,000/- on account of mental stress and agony caused to the Complainant;
5. Direct to Ops to pay Rs. 75,000/- as cost of the litigation;
6. Any other order, direction which the Hon'ble Commission deems fit keeping in view the facts and circumstances of the present case.

2.           Notice of this complaint was served upon the opposite parties.  When none put in appearance on behalf of opposite parties no.1 to 9, they were proceeded exparte vide order dated 20.12.2021. Thereafter, on 04.05.2022, Sh. Gazi Mohd. Umair, Advocate, appeared on their behalf by filing power of attorney as well as application to set aside exparte order dated 20.12.2021. The said application was allowed and opposite parties No.1 to 9 were allowed to join the proceedings. They were directed to file their reply but the same was not filed. Since, thereafter, none had appeared on their behalf on 01.07.2022 and since, 45 days’ period had elapsed w.e.f. 04.05.2022, as such, they were again proceeded exparte on 01.07.2022. However, at the time of arguments on 19.07.2022, Sh. Anuj Kohli, Advocate along-with Sh. Jatin Bansal, Advocate appeared on behalf of opposite parties No.1 to 9 and seeks permission to join the proceedings at that stage, which was allowed by the Commission, only to the extent of arguing the matter.
3.           Opposite party no.10 in its written version took following pleas/objection:-
   1. that this Commission did not vest with pecuniary jurisdiction to entertain this complaint;
   2. that the complainant is an investor and not a consumer;
   3. that the complainant neither paid any amount to opposite party no.10 nor  it was party to the Sale Agreement executed  between her and opposite parties no.1 to 9, as such, it has no liability towards her;
   4. that opposite party no.1 executed Collaboration Development Agreements with  opposite party no.10, whereby it was to hand over 12.33 acres of land in village Palheri, which was to be further developed by opposite party no.10 by way of plotted area i.e. plots of various sizes for opposite party no.1;
   5. that out of 12.33 acres, only the land measuring 8.64 acres was handed over to opposite party no.10 on 09.06.2017 by concealing the order dated 19.01.2017, Annexure OP-10/3 having been passed by the Punjab and  Haryana High Court in civil writ petition no.12294 of 2016, whereby status qua had been  maintained thereon.
   6. that the said writ petition was dismissed as withdrawn on 25.05.2018, Annexure OP-10/4   
   7. that thereafter the Directors/Ex-Directors of opposite party no.1 went into litigation by way of filing civil suit wherein stay was granted by the civil court-vide order dated 23.07.2018, Annexure OP-10/6, which remained operative till 10.07.2021 and thereafter, it was withdrawn;
   8. that thereafter though development work was started, yet, the village khewatdars of the village Palheri opposed any work on the project land, as a result whereof police complaint dated 27.11.2021 was lodged; and
   9. that delay if any took place on account of the reason that opposite party no.1 handed over unclear title of land;
4.           Remaining averments made in the complaint have been  denied being wrong. Prayer has been made to dismiss the complaint against opposite party no.10.
5.           In the rejoinder filed, the complainant reiterated all the averments contained in her complaint and controverted those contained in written statement filed by  opposite party no.10.
6.           This Commission afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the complainant and opposite party no.10 have adduced evidence by way of affidavits and also produced numerous documents including written arguments filed by the complainant.
7.           We have heard the contesting parties and have carefully gone through the entire record of the case, including the written arguments.
8.           First, we will deal with the objection taken by the opposite party no.10 with regard to pecuniary jurisdiction of this Commission, it may be stated here that the provisions of Section 47 of Consumer Protection Act, 2019 (under which this complaint has been filed) speak about the jurisdiction of this Commission. It is necessary to reproduce relevant provisions of Section 47 of CPA 2019 as under:-

 

“………47. (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—

 

1. to entertain—

 

1. complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore: Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;
2. complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees; appeals against the orders of any District Commission within the State…
3. xxxxxx…..….”

 

A bare perusal of Section 47 (1) (a) (ii) provides that the State Commission shall also have the jurisdiction to entertain and decide the complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees.

                   Thus, the moot question which falls for deciding jurisdiction of this Commission in the present case is, as to whether, the complainant has been able to prove that she has been enthralled under the “unfair contract” or not?  For this, first we have to refer to the definition of “unfair contract” provided under Clause 2 (46) of CPA 2019 as under:-

 

(46) "unfair contract" means a contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant change in the rights of such consumer, including the following, namely:—

 

(i) requiring manifestly excessive security deposits to be given by a consumer for the performance of contractual obligations; or

 

(ii) imposing any penalty on the consumer, for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract; or

 

(iii) refusing to accept early repayment of debts on payment of applicable penalty; or

 

(iv) entitling a party to the contract to terminate such contract unilaterally, without reasonable cause; or

 

(v) permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or

 

(vi) imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage….”

 

In the present case, admittedly, the Sale Agreement was executed on 17.02.2012, Annexure C-1, wherein, it has been candidly agreed to between the complainant and opposite parties no.1 to 9 that a plot measuring 350 square yards has been sold to the complainant @4000/- per square yardi.e. total amount of Rs.14 lacs, which stood already paid by the complainant to opposite parties no.1 to 9. Over and above that amount, only the amount towards CLU, EDC, IDC, Licence Fee etc was payable by the complainant towardsthe said plot measuring 350 square yards. However, it is coming out from the record that thereafter, a copy of Plot Buyer’s Agreement dated 02.06.2021, Annexure-7 wherein the seller has been shown as opposite party no.10 on 02.06.2021, was sent to the complainant by opposite parties no.1 to 9 for her signatures, which was not signed by her. We have gone through the contents of the said draft of agreement and found that the area of the plot therein has been decreased to 214.67 square yards from 350 square yards. Similarly, there are number of other terms and conditions which clearly goes to show that the same are one sided, harsh, oppressive and unconscionable to the complainant like, though the plot in question was booked by the complainant in the year 2012 and the entire basic sale consideration also stood paid by her, yet, in 2021, it was mentioned in the draft agreement that possession of the plot will be delivered by 2024 i.e. after 12 years of booking of the same; as per Clause 1.1 of the said draft agreement, the size of the plot was unilaterally decreased from 350 square yards to 214.67 square yards; though the complainant had paid amount to opposite parties no.1 to 9 and the draft agreement was also signed by opposite party no.1, yet, it has been shown that the same is to be executed between the complainant and opposite party no.10 only. In our considered opinion, the act of thrusting the said one sided, harsh, oppressive and unconscionable conditions upon the complainant, amounts to imposing upon the complainant unreasonable charge, obligation and condition which had put him to disadvantage. The case of the complainant thus falls under Section 2 (46) (vi) of CPA 2019.Thisact and conduct of opposite parties no.1 to 9 also amounts to effect of permitting them to assign the contract to the detriment of the complainant, without her consent and also imposing upon her unreasonable charge, obligation and condition to put her to disadvantage and that too after more than 9 years of booking of plot measuring 350 square yards, against which entire basic price of Rs.`14 lacs stood received from her. Thus, this act and conduct of opposite parties no.1 to 9 also covered the provisions of Section 2 (46) (v) and (vi) of CPA 2019, which gives reason to this Commission to say that it was a case of ‘unfair contract’. In this view of the matter, objection taken by opposite party no.10 regarding pecuniary jurisdiction of this Commission stands rejected and it is held that this complaint is maintainable under Section 47 (1) (ii) of CPA 2019.        

9.           Now coming to the objection taken to the effect that the complainant did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainant has purchased the plot in question, in the manner explained above, to indulge in ‘purchase and sale of plots’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their  onus, hence we hold that the complainant is a consumer as defined under the Act. As such, objection taken in this regard as such stands rejected.
10.           It is evident from the record that vide sale agreement dated 17.02.2012, Annexure C-1, the complainant had purchased a plot measuring 350 square yards from opposite party no.1 @Rs.4000/- square yards i.e. total Rs.14 lacs. It is also coming out from the said agreement that the said amount of Rs.14 lacs stood received by opposite parties no.1 to 9 from the complainant. Apart from this, the complainant was required  to pay charges towards CLU, EDC, IDC, licence fee and any other Govt. Charges. Thereafter, as per demands raised by opposite parties no.1 to 9,  the complainant paid Rs.2,45,000/- vide cheque dated 04.07.2014, Annexure C-4 and Rs.9,91,250/- vide cheque dated 20.01.2021, Annexure C-6. In this manner, total amount of Rs.26,36,250/- stood received by opposite parties no.1 to 9 from the complainant. As stated above, thereafter, instead of delivering possession of the plot measuring 350 square yards, the complainant was asked to sign the buyer agreement Annexure-7 in respect of plot measuring 214.67 square yards and as per Clause 5.1 thereof, possession was to be delivered by 2024 i.e. within total period of 36 months (30 months plus 6 months grace period). 
11.           In her complaint, the complainant while relying upon letter dated 21.01.2021, Annexure C-6 has specifically stated that the said letter was got signed with the blank columns and thereafter opposite parties no.1 to 9 filled the size of the plot as 215 square yards instead of 350 square yards. To substantiate her stand, she has stated that when she received the letter Annexure C-6 and also the plot buyers’ agreement, wherein the size of the plot was found mentioned 215 square yards instead of 350 square yards and also at the same time, the terms and conditions of the said agreement were found oppressive, she challenged the same by way of sending letter dated 04.07.2021, Annexure C-8, followed by email dated 05.07.2021 and legal notice dated 23.07.2021, Annexure C-9, which went unanswered by the opposite parties. It is significant to mention here that all these allegations leveled by the complainant has gone un-rebutted/ unchallenged by opposite parties no.1 to 9, as they failed to file their written reply and evidence and were also proceeded against exparte twice.

                   Even the allegations leveled by opposite party no.10 to the effect that out of 12.33 acres only the land measuring 8.64 acres was handed over to opposite party no.10 on 09.06.2017 by concealing the order dated 19.01.2017, Annexure OP-10/3 having been passed by the Punjab and  Haryana High Court in civil writ petition no.12294 of 2016, whereby status qua had been  maintained thereon; that delay if any took place on account of the reason that opposite party no.1 handed over unclear title of land; and that opposite party no.10 was only to provide the plotted vacant land to opposite party no.1, have also gone un-rebutted/unchallenged by opposite parties no.1 to 9, as they failed to file their written reply and evidence and were also proceeded against exparte twice. 

12.           Even during the arguments phase also, Counsel for opposite parties no.1 to 9 who was allowed to join proceedings for oral arguments only, was not having any answer, when he was asked as to how and why, the size of the plot was changed from  350 square yards to 215 square yards  and also plot buyers’ agreement had not been executed on 07.02.2012, especially, when the company had already received the entire basic sale consideration of Rs.14 lacs and only EDC, IDC etc. were pending, which too were paid by the complainant. In our considered opinion, by not filing written version and evidence by opposite parties no.1 to 9, an adverse inference can easily be drawn that they have nothing to say in their defence against the allegations leveled by the complainant and opposite party no.10.
13.           Not only as above, record reveals that despite the fact that entire basic sale price of Rs.14 lacs stood received by opposite parties no.1 to 9 from the complainant as far as back in 2012, yet, plot buyer’s agreement was not executed thereafter for a long time and when it was sent in the year 2021 i.e. after more than about 9 years, the terms and conditions thereof were found heavily loaded in favour of the company, and as such, when despite making requests by the complainant, the same were not amended, she filed this complaint. This act of opposite parties no.1 to 9, in itself, is a gross violation of Section 6 (1) of the PAPR Act, which lays a duty on the project proponent to execute the agreement for sale as per law, after obtaining the maximum sale consideration of 25%. It is apposite here to reproduce the said provision:-

“6. Contents of agreement of sale:- (1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act No. 16 of 1906) ;

Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots.

(2) xxxxxxxxxxxxxxxx……………...

(3) xxxxxxxxxxxxxxxxx……………….”

The opposite parties no.1 to 9 were legally bound under law to execute the agreement and to get the same registered under the Registration Act 1908, after obtaining 25% of the sale consideration, but in this case, the said provision has been violated at large. If opposite parties no.1 to 9 adopted unfair trade practice and violated the provisions of law with impunity by not getting the buyer’s agreement executed for such a long period, they cannot take any benefit out of their wrong doings.

14.           It is significant to mention here that there is nothing on record to prove as to as what stage, development works at the project site has reached. It is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals including completion certificates have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. However, in the present case what to speak of evidence regarding development works and basic amenities at the project site, opposite parties no.1 to 9 did not even contested the complaint by way of filing written reply and evidence. On the other hand, opposite party no.10  is evading its liability on the ground that it was having no privity of contract with the complainant and on the other hand, opposite parties no.1 to 9 failed to provide it land, free of all encumbrances, therefore, it cannot be held liable in the matter. Opposite party no.10 has specifically taken this plea in para no.3 of its preliminary objections.
15.           To substantiate its plea, opposite party no.10 has placed reliance on order dated 19.01.2017, Annexure OP-10/3 having been passed by the Punjab and  Haryana High Court in civil writ petition no.12294 of 2016, whereby status qua had been on the land in question i.e. it was ordered that “Meanwhile, nature of the land shall not be altered”, though the said writ petition was dismissed as withdrawn on 25.05.2018, Annexure OP-10/4. He has further placed reliance on order dated 23.07.2018, Annexure OP-10/5 having been passed by, Kharar Court, in CS/106/2017 titled as Naresh Garg and another Vs. Motiaz Royale Estate Pvt. Ltd and others, wherefrom it is evident that the said application was allowed and temporary injunction was granted to plaintiffs to the effect that defendants No.1 to 5 (Motiaz Royale Estate Private Limited, Parveen Kansal, Neeraj Kansal, Indu Kansal and Vikas Gupta, Directors of Motiaz Royale Estate Pvt. Ltd.) are restrained from ousting the plaintiffs from suit property. Defendants No.1 to 5 were also directed to restrain from alienating the suit property any further. The said suit was withdrawn vide order dated 10.07.2021. We have gone through the plaint of CS/106/2017 bearing the khasra nos., which were also found mentioned in the Collaboration Agreement dated 03.05.2013, Annexure OP-10/1, having been executed between M/s Altus Space Builders Pvt. Ltd. and M/s Motiaz Royale Estate (P). Ltd. However, the complainant was not a party to the said suit. Thus, from the facts narrated above, it can easily be said that the land in question was under litigation and as such cannot be said to be free of all encumbrances.

                   Be that as it may, we are of the considered opinion that when the record transpires that the entire transaction has taken place between the complainant and opposite parties no.1 to 9; payments have also been received from the complainant by opposite parties no.1 to 9; Sale Agreement was also executed between the complainant and opposite party no.1 in the year 2012;  even in collaboration agreement dated 06.05.2013 executed between the opposite party no.1 and opposite party no.10, it has been clearly agreed to between the parties, under clause 4 that the responsibility of dispensing the rights/shares of the individual buyer/vested members of the Second Party i.e. opposite party no.1 lies solely with opposite party no.1 only; and at the same time, the complainant has failed to establish that she was having any privity of contract with opposite party no.10 in the matter, as such, we cannot held opposite party no.10 liable in this regard.

16.           Hard earned money to the tune of Rs.26,36,250/- was paid by the complainant with a hope to have her own plot. However, her hopes were dashed to the ground when neither the opposite parties no.1 to 9 allotted her plot measuring 350 square yards nor executed plot buyer’s agreement for a long time and when it was sent after more than 9 years terms and conditions contained therein were highly oppressive; nor possession of the plot in question has been offered despite the fact that the same was booked as far as back in 2012.  Thus, from the peculiar circumstances of this case, it has been proved that the opposite parties no.1 to 9 made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, was entitled to rely upon it and she may act in reliance on it. The complainant is thereby involved in a disadvantageous transaction with the developer and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainant to enter into the Sale Agreement, referred to above, in the year 2012 but there was no desire of the builder to deliver possession of the plot purchased  and also there was an intent to deceive her, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite parties no.1 to 9, which has definitely caused a lot of mental agony, harassment and financial loss to the complainant.  Thus, in our considered view, the complainant is entitled to get possession of a plot measuring 350 square yards in the project in question, alongwith delayed compensation for the period of delay in delivery of possession.
17.           Now the question which falls for consideration is, as to for what period, the complainant is entitled for compensation? Though, plot buyer’s agreement in this case has not been executed  between the parties, as such, this inaction on the part of opposite parties no.1 to 9 cannot be used as a tool to defeat the genuine rights of the complainant, which is available to her under law. Under these circumstances, in our considered opinion, opposite parties no.1 to 9 should have delivered possession of the plot in question to the complainant, within a reasonable period of three years from the date of booking/purchase thereof, which they failed to do so, and, on account of this reason, the complainant is entitled to get compensation for the period of delay i.e. starting from 17.02.2015 onwards (date of purchase/sale of plot being 17.02.2012)  till possession of the plot in question is delivered to her, complete in all respects. Our this view is supported by the judgment passed by the Hon’ble Supreme Court of India in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors. – (2018) 5 SCC 442 , relevant part whereof is reproduced hereunder:-

 

“…………15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered……”

 

18.           Now, we will like to decide as to what amount of compensation should be granted to the complainant, for the period of delay in delivery of possession, starting from 17.02.2015 (reasonable period of 3 years from the date of booking/payment of entire basic sale price). It may be stated here that failure on the part of the opposite parties no.1 to 9 to provide possession of the plot within the stipulated period aforesaid amounts to deficiency in service and negligence. It is also matter of common parlance that for purchasing the unit/plot, the purchasers take loans from their family members, relatives and friends or financial institutions. On account of delay in actual delivery of possession within the stipulated/reasonable period of three years, the complainant suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer.

                   In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, The Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today.  The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case.   Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.…..”

 

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 Of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In the present case, the complainant had purchased the plot as far as back in 2012 and remained empty handed for more than 10 years and has to approach this Commission for redressal of her grievance. The opposite parties no.1 to 9 have played fast and loose with the complainant and have caused harassment and mental agony to her, which is unacceptable and this practice needs to be deprecated. In our considered opinion, if we grant interest @9% p.a. to the complainant on the entire amount deposited by her, from the due date of possession onwards till delivery of possession thereof, that will meet the ends of justice.

19.           For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties no.1 to 9, jointly and severally, are directed as under:-
    1. To deliver actual physical possession of the plot measuring 350 square yards in the project in question, to the complainant, complete in all respects, after obtaining completion certificate from the competent Authority, within a period of 03 months from the date of receipt of a certified copy of this order.
    2. To pay to the complainant, interest @9% p.a. on the amounts deposited, starting from 17.02.2015 till 31.07.2022, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till this entire accumulated payment is made to the complainant.
    3. To pay to the complainant, interest @9% p.a. on the amounts deposited, w.e.f. 01.08.2022, onwards (per month), by the 10^th of the following month till actual delivery of physical possession of the unit, complete in all respects. 
    4. To pay to the complainant, compensation to the tune of Rs.65,000/- for causing her mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of  passing of this order till realization.
20.           Complaint against opposite party no.10- Altus Space Builders Private Limited is dismissed with no order as to costs.
21.           Certified copies of this order be sent to the parties, free of charge.
22.           The file be consigned to Record Room, after completion.

 

Pronounced.

04.08.2022

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

 MEMBER

 Rg.