Chandigarh

StateCommission

CC/985/2016

Amarinder Singh Walia - Complainant(s)

Versus

M/s Emaar MGF Land Limited - Opp.Party(s)

Lakhbir Singh, Adv.

16 Jun 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	985 of 2016
Date of Institution	:	30.12.2016
Date of Decision	:	16.06.2017

 

Amarinder Singh Walia, H.No. 1258, Sector 37-B, Chandigarh – 160036.

……Complainant

V e r s u s

M/s Emaar MGF Land Limited, through its Managing Directors/Directors, SCO 120-122, First Floor, Sector 17-C, Chandigarh.

                                                    .... Opposite Party

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Lakhbir Singh, Advocate for the complainant.

Sh.  Ashim Aggarwal, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the Opposite Party launched its project “Mohali Hills” situated in Sector 99, Mohali. The representative of the Opposite Party approached the complainant in January, 2013 and he was induced by its representative  to purchase the unit in the project of the Opposite Party. The complainant booked a residential plot No.99-EP-118-250 measuring 250 Sq. Yards in the project of the Opposite Party  i.e. “Mohali Hills” situated in Sector 99, Mohali on 16.04.2013 by making payment of Rs.5 lacs as booking amount.  It was further stated that due date for next installment was 07.06.2013 but the Opposite Party did not send the Buyer’s Agreement before that date and, therefore, the complainant did not pay the due installment in time. The Buyer’s Agreement was ultimately sent and executed between the parties on 10.06.2013 (Annexure C-2). Due to this delay in payment of installment, the Opposite Party imposed penalty upon the complainant, which was waived off after his various request (Annexure C-1 colly.). The total price of the plot was Rs.74,84,000/-. As per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of 18 months from the date of execution of the Agreement i.e. latest by 10.12.2014  but the Opposite Party failed to hand over the same within the prescribed period, despite receipt of the amount of Rs.74,37,458/- from the complainant.  It was further stated that the complainant visited the site of the Opposite Party and requested for possession of the plot but the Opposite Party gave lame excuses for the delay in giving possession. It was further stated that the Opposite Party is bound to pay compensation of Rs.50/- per sq. yard per month on account of delay in delivering possession of the plot but the same was not paid to the complainant. It was further stated that the Opposite Party issued a letter dated 03.02.2014 while assuring that the process of handing over of the plots shall commence within 60 days of the letter. Thereafter, the possession was finally offered to the complainant vide letter dated 16.10.2015 and demanded an additional amount of Rs.8,05,073/-. Copies of the aforesaid letters are at Annexures C-5 & C-6. It was further stated that after receipt of the letter dated 16.10.2015, the complainant got suspicious, therefore, he visited the site, in question and he was shocked to see the ground reality that development work was still in progress on the project site. It was further stated that the Opposite Party is in regular practice to issue possession letter to its customers without developing the land and without obtaining the completion certificate from the concerned authorities. It was further stated that at the time of allotment, the Opposite Party claimed that the whole project would be pollution free and there would be green area covering more than 42 hectare. However, till date, no green area has been developed at the project site, as promised. It was further stated that the Opposite Party also claimed that there would be community centre/club in its project but till date, the construction of the building for community centre/club is not started. It was further stated that the Opposite Party failed to hand over possession of the plot to the complainant, complete in all respects. The complainant also got loan from HDFC Bank for the plot, in question. It was further stated that since the development work has not been carried out at the project site, the complainant did not pay the amount, as demanded by the Opposite Party vide letter dated 17.10.2015. The Opposite Party also raised a demand of Rs.19,487/- towards maintenance charges vide letter dated 17.10.2016 (Annexure C-11). It was further stated that on the personal visit by the complainant, it was found that the project site is still under developed and the facility for water connection, street light and sewerage is still under construction but despite repeated requests and visits, the Opposite Party failed to complete the project. It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.           The Opposite Party, in its written version, has taken objection regarding arbitration clause in the Agreement, and also, it 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 complaint is time barred, as it has been filed more than two years after accrual of alleged cause of action and in the present case, cause of action arose on 03.02.2014, when possession was offered to the complainant. It was further stated that this Commission has no territorial jurisdiction to try and entertain the complaint, as the property is located in Punjab and the registered office of the Opposite Party is at New Delhi. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint, as the claim amount together with interest exceeds Rs.1 crore. It was further stated that the complainant did not fall within the definition of “Consumer” as defined under Section 2(d) of the Consumer Protection Act, 1986, as he is living at H.No.1258, Sector 37-B, Chandigarh, as such, the complainant bought the said unit for the purpose of investment/speculation. It was admitted regarding booking, allotment of the unit and execution of the Agreement. It was further stated that the complainant failed to make the payment on time, hence, interest was demanded from the complainant for delayed payment.  It was further stated that some delayed payment charges were waived as a goodwill gesture, subject to submission of delayed payment charges undertaking from the complainant. The Opposite Party vide email dated 27.09.2013 confirmed that Rs.55,222/- were being waived as a one time case and should not be construed to be a precedent and/or binding on the Company to exercise such discretion subsequently (Exhibit OP/3). It was further stated that as per Clause 8 of the Agreement, endeavor was to be made to hand over possession within 24 months of Agreement, else there was a penalty clause for delay. It was further stated that it is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract more so when there is penalty clause under the Agreement for any alleged delays. It was further stated that possession was offered on 03.02.2014 i.e. much before 24 months of the date of execution of the Agreement, upon completion of all the amenities, as per terms of the Agreement. It was denied that the complainant paid Rs.74,37,458/- against the plot, in question because as per the records of the Opposite Party, the complainant paid an amount of Rs.74,06,431/- vide statement of account (Exhibit OP/4).  It was further stated that intimation of possession of plot was given on 03.02.2014 and settlement of final dues was given on 16.10.2015 and, still the complainant failed to take possession of the plot. It was further stated that the Opposite Party obtained partial completion certificate dated 16.10.2015 (Exhibit OP/7) by way of abundant caution due to notification of 2014, even though it was exempted from provisions of PAPRA Act vide notification dated 22.01.2008 and at that time when possession was offered on 03.02.2014, there was no requirement of any completion certificate. Copy of exemption notification dated 22.01.2008 is at Exhibit OP/8. It    was   further   stated that   many    families    are    residing     happily   and large   number   of    registrations    have   been    done. It was   further   stated   that    no    letter/email has ever been   sent   by the  complainant from 03.02.2014 onwards,

when possession was offered, stating that there is no development. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.

3.           The complainant filed rejoinder to the written statement of the Opposite Party, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Party. 

4.           The Parties led evidence, in support of their case.

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

6.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

25.        The next 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  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

26.        To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), 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.”

27.                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

28.      Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

29.       In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

 “8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

30.     Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

31.        Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

32.        We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

33.        The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

34.        Not only this, recently, it was also so said by the National Commission, 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.”

35.     In  view of the above, the plea taken by the opposite party, that 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 no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.”

            In view of the above, the objection raised by Counsel for the Opposite Party, being devoid of merit, is rejected.

7.           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 complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to it. In the instant case, it is evident from the record, that Plot Buyer’s Agreement (Annexure C-2) was executed between the parties, at Chandigarh. Not only this, receipts/acknowledgment-cum-receipts (at page No.53 to 58) and intimation of possession letter dated 03.02.2014 (Annexure C-5) & settlement of final dues letter dated 16.10.2015  (Annexure C-6) was also sent by the Opposite Party from its Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

8.           Another objection taken by the Opposite Party, with regard to pecuniary jurisdiction, also deserves rejection.  As per admitted facts, the complainant has sought refund of the amount of Rs.74,37,458/- alongwith interest @24% p.a. with effect from the date of payment made; compensation to the tune of Rs.6 lacs, for rendering deficiency in service and harassment etc. and cost of litigation to the tune of Rs.1 lac. It is argued by Counsel for the Opposite Party that if the entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and in that event, it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016. This issue, whether interest is to be added when looking into pecuniary jurisdiction of this Commission, came up for consideration in the case of Surjit Singh Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, wherein, after noting similar objections it was observed as under:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

              In view of above, this objection taken by the Opposite Party that this Commission lacks pecuniary jurisdiction, being devoid of merit, fails and the same stands rejected.

9.           The objection taken by the Opposite Party, to the effect that the complainant  is living at H.No.1258, Sector 37-B, Chandigarh and he bought the said unit in the project of the Opposite Party only for investment/speculation purposes and, as such, he does not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It is pertinent to note that the complainant in para No.7 of his rejoinder has clearly stated that he is not having any house/residential property in Chandigarh, Panchkula, Mohali or any other part of country. The complainant further stated that he is not the owner of H.No.1258, Sector 37-B, Chandigarh and mother of the complainant i.e. Amarjit Kaur Walia is the owner of the aforesaid house. Further, there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Party, mere bald assertion i.e. by simply saying that the  complainant being investor, does 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  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.  

10.         The next question, that falls for consideration before us is as to how much amount was deposited by the complainant. According to the Opposite Party, the complainant deposited an amount of Rs.74,06,431/- in respect of the unit, in question, which is evident from statement of account (Annexure OP/4). On the other hand, the complainant stated that he deposited the total amount of Rs.74,37,458/- and to prove this fact, he has also placed on record payment details (Annexure C-3). After going through both the documents annexed by both the parties, we are agreeable with the contention of the complainant that he deposited the total amount of Rs.74,37,458/- because according to the statement of account (Annexure C-4), the complainant deposited the total amount of Rs.74,06,431/- but the complainant has also annexed receipt of some other payments with regard to water charges i.e. Rs.4720/- & Rs.2078/- and maintenance bill of Rs.10,955/- & Rs.914/- (at page Nos. 59 to 62). It is pertinent to note that the Opposite Party deducted the amount of Rs.12,360/- with regard to collection adjustment. If we add all the charges paid by the complainant including the aforesaid amount of Rs.12,360/-, the total comes to Rs.74,37,458/- and if we deducted the said amount of Rs.12,360/-, the amount comes to Rs.74,25,098/-. So, it is clearly proved that the complainant paid the total amount of Rs.74,37,458/- in respect of the unit, in question.

11.         The next question that falls for consideration is as to whether, offer of possession made by the Opposite Party, to the complainant, vide letter dated 03.02.2014 (Annexure C-5), in respect of plot bearing No.99-EP-118-250 in Block EP situated at Sector 99,  Mohali Hills (Project), could be said to be genuine offer or not. It is the admitted fact that the complainant booked plot No.99-EP-118-250 in the project of the Opposite Party on 16.04.2013 and Plot Buyer’s Agreement was executed between the parties on 10.06.2013 (Annexure C-2). As per Clause 8 of the Agreement, possession of the said plot was to be delivered within a maximum period of 24 months from the date of execution of the Agreement i.e. latest by 09.06.2015 and not more than that.        According to the Counsel for the Opposite Party, possession of the said plot was offered to the complainant vide intimation of possession letter dated 03.02.2014 (Annexure C-5) i.e. within the stipulated period, as mentioned in the Agreement, after completion of amenities, but he did not come forward to take possession of the said plot, in question. On the other hand, as per the complainant, the Opposite Party vide letter dated 03.02.2014 assured that the process of handing over of the plots shall commence within 60 days of the letter. Thereafter, the possession was finally offered to the complainant vide letter dated 16.10.2015 (Annexure C-6) and demanded an amount of Rs.8,05,073/-.      After going through the record, we are not agreeable with the contention of the Counsel for the Opposite Party because on receipt of letter dated 16.10.2015, the complainant got suspicious and he visited the site, in question. The complainant was shocked to see the ground reality that development work was still in progress on the project site. The complainant further stated that the Opposite Party was in regular practice to issue possession letter to their customers without developing the land and without obtaining the completion certificate from the concerned authorities. It was further stated by the complainant the on his personal visit, it has been found that the project site is still under-developed and the facility for water connection, street light and sewerage is still under construction. The complainant further stated that the Opposite Party only offered paper possession and not more than that. It is, no doubt, true that possession of the unit was to be delivered within a period of 24 months from the date of Agreement i.e. latest by 09.06.2015 and intimation of possession letter was sent to the complainant vide letter dated 03.02.2014 i.e. within the stipulated period, as mentioned in the Agreement. 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. 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 the Opposite Party, to prove that 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 Party, 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 it could be said to be the best person, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but it failed to do so. It is relevant to mention here that the Opposite Party in its intimation of possession letter in respect of plot No.99-EP-118-250 dated 03.02.2014 (Annexure C-5) informed the complainant that “process of handing over of the plots in Sector 99, Mohali Hills shall commence within 60 days of this letter, as your plot is ready to be handed over for possession.” A bare perusal of the aforesaid letter clearly reveals that the Opposite Party only intimated the complainant regarding process of handing over of possession shall start within 60 days of this letter i.e. approximately May, 2014. Thereafter, the Opposite Party failed to send any letter regarding handing over actual physical possession of the unit, in question. Not only this, the Opposite Party sent settlement of final dues letter dated 16.10.2015 to the complainant i.e. after about 1 year and 8 months from intimation of possession letter and demanded an amount of Rs.8,05,073/-. It means that the Opposite Party failed to deliver possession of the unit to the complainant within the timeframe mentioned in the intimation of possession letter. This issue of same sector i.e. Sector 99 was already dealt by this Commission in Complaint case No.845 of 2016 titled as Gurjit Singh Gill Vs. M/s Emaar MGF Land Private Limited & Anr., decided by this Commission on 04.05.2017, which reads thus :-

“10.          The next question that falls for consideration is as to whether, offer of possession made by the Opposite Parties, to the complainant, vide letter dated 03.02.2014 (Annexure C-14), in respect of plot bearing No.99-EP-09-190 in Block EP situated at Sector 99,  Mohali Hills (Project), could be said to be genuine offer or not. It is the admitted fact that the complainant booked the plot in the project of the Opposite Parties vide application dated 01.02.2011 and plot No.99-EP-09-190 was allotted to the complainant vide provisional allotment letter dated 08.02.2011 (Annexure C-1). Plot Buyer’s Agreement was executed between the parties on 14.11.2011 (Annexure C-8). It is pertinent to note that the said Agreement was executed between the parties after the delay of about 9 months, when the complainant sent email dated 19.04.2011 (Annexure C-3) and letter dated 10.08.2011 (Annexure C-5). As per Clause 8 of the Agreement, possession of the said plot was to be delivered within a maximum period of 18 months from the date of execution of the Agreement i.e. latest by 13.05.2013 and not more than that.

                According to the Counsel for the Opposite Parties, possession of the said plot was offered to the complainant vide intimation of possession letter dated 03.02.2014 (Annexure C-14) after completion of amenities, but he did not come forward to take possession of the said plot, in question.

                On the other hand, as per the complainant, the Opposite Parties offered possession vide the aforesaid letter, without completion of amenities, at the site because number of emails/letters were exchanged between the parties in this regard, vide which, it is clearly proved that the said possession is only a paper possession.

                After going through the record, we are not agreeable with the contention of the Counsel for the Opposite Parties because after receipt of the possession letter, the complainant sent a letter dated 17.02.2014 (Annexure C-15) to the Opposite Parties, in which, it has been clearly stated that “We have visited the place after receiving this letter that place is not ready to possession. That place is not approachable at all and not possession ready.” From the aforesaid letter, it is clearly proved that after visit the site, the complainant observed that the said place is not approachable and possession is not ready. The complainant also sent a letter dated 22.02.2014 (Annexure C-17) to the Opposite Parties, in which, he refused to take possession due to the following reasons :-

• Unavailability of water supply
• Unavailability of electricity supply
• Incomplete sector approach and street carpeting (to my plot).

The complainant in the aforesaid letter further intimated to the Opposite Parties that  “It is extremely sad to find that Emaar MGF is delivering the possession of the plot without completing the work on basic amenities required for constructing the plot.” Not only this, the complainant further sent email dated 03.07.2014 (Annexure C-20) to the Opposite Parties. The relevant portion of the said email reads thus :-

“we received demand of Rs.178641 at the time of intimation of possession, which includes couple of charges like electrification etc. when we visited that place it was not possession ready at all x x x x x x x x

We will not going to make payments until we get our enquiries answered, if you cannot then please REFUND OUR MONEY WE ARE NO MORE INTERESTED INVESTING IN YOUR PROJECT. SORRY TO SAY YOU ARE NOT UPTO THE STANDARDS YOU WERE TALKING ABOUT AT THE TIME OF SELLING YOUR PROPERTY.”   

The complainant further sent email dated 08.08.2016 (Annexure C-22) to the Opposite Parties. The relevant portion of the said email reads thus :-

“We visited your site office at Sector 105 on Aug 6 Saturday to initiate the process of property possession (#99-EP-09-190) and registration.

X x x x x

We could not take the property possession earlier as there were no electricity and water connections available, and even for some period of time carpeting of the road to the plot was also not complete. Even today the property parks are not maintained, and area is not in a livable condition. When this property was sold to us, there was no mention of the club and any associated charges. x xx x x x xx”

Strangely, the Opposite Parties vide email dated 08.08.2016 (Annexure C-23) sent to the complainant, which reads thus :-

“x x x x

Further please be informed that we have already initiated the possession process in tower G3 wherein your unit is located and letter of possession for your unit shall also be sent shortly x x x x x”

From the afore-extracted email sent by the Opposite Parties to the complainant, it is clearly proved that they have initiated the possession process and further assured to send the possession letter shortly. It means that actual physical possession of the unit, in question, was not sent to the complainant. Moreover, the complainant also pointed out the email dated 15.10.2016 (Annexure C-25). The relevant portion of the said email reads thus :-

“x x x x x

Company supposed to give possession after 18 months of booking i.e. August 2012. but we received intimation of possession on 03-feb-2014. We were offered possession the site was not possession ready at all there was no water supply and no electricity at that time. Some pics of site is attached for your information. X x x x x x”

The complainant also sent email dated 08.11.2016 (Annexure C-27) to the Opposite Parties seeking refund of the amount with interest etc. To prove the fact regarding lack of basic amenities at the site, the complainant also placed on record photographs (Annexures C-45/1 to C-45/12). The complainant also placed on record information obtained under RTI by other allottees, vide which, it is clear that the Opposite Parties failed to apply for completion certificate and only obtained partial completion certificate. At the time of arguments, Counsel for the complainant also placed on record information obtained by another allottee under RTI Act, 2005, dated 15.02.2017 from PSPCL, which reads thus :-

“The developer M/s Emaar MGF Land has been granted regular connection only in Sector 105 but has yet to be released regular connection in Sector 99 & 109 as per NOC approved for partial load demanded by the developer.x x x”

From the afore-extracted emails, it is clearly proved that the Opposite Parties failed to offer possession of the unit to the complainant, complete in all respects. 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. 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 the Opposite Parties, to prove that 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, 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. It is relevant to mention here that the Opposite Parties in their intimation of possession letter in respect of plot No.99-EP-09-190 dated 03.02.2014 (Annexure C-14) informed the complainant that “process of handing over of the plots in Sector 99, Mohali Hills shall commence within 60 days of this letter, as your plot is ready to be handed over for possession.” A bare perusal of the aforesaid letter clearly reveals that the Opposite Parties only intimated the complainant regarding process of handing over of possession shall start within 60 days of this letter.  In the present case, according to the Agreement, the possession was to be delivered to the complainant within a maximum period of 18 months from the date of execution of the Agreement i.e. latest by 13.05.2013 but the Opposite Parties failed to deliver possession of the unit, complete in all respects, to the complainant, within the stipulated period, as mentioned in the Agreement and only offered possession vide letter dated 03.02.2014 i.e. after a delay of about 9 months that too was only a paper possession and not more than that because till their own email dated 08.08.2016, the Opposite Parties admitted regarding initiating the possession process and further assured to send the possession letter shortly. So, it is clearly proved that the said letter of intimation of possession dated 03.02.2014 is only a paper possession.”

                So, in view of above, it is clearly proved that the said sector was not complete in all respects when offer of possession was given to the complainant and the Opposite Party offered only paper possession.

12.                   The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, when the same was offered to him vide letter of intimation of possession dated 03.02.2014 (Annexure C-5), and that too without completion of amenities, in the absence of any force majeure circumstances. It may be stated here that non-delivery of possession of the unit, in question, complete in all respects, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Party that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon`ble National Commission, held as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar   MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the Complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

 

In the case titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi on 03.07.2015.’ The relevant portion of the judgment reads thus :-

“16.    Admittedly, appellants did not offer possession of the apartment within  the prescribed period, in terms of Clause 21 of the “Apartment Buyer’s Agreement”,  Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only  in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame  the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering  service but are also guilty of indulging into unfair trade practice. The appellants in  the present  case are enjoying the hard earned money  of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.”

The aforesaid appeal was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi with punitive damages. Aggrieved against the aforesaid order, Emaar MGF Land Limited filed Special Leave to Appeal (C) No(s). 32492/2015 before the Hon’ble Supreme Court of India and the same was also dismissed.

              In view of the above, it is held that since there was a material violation on the part of the Opposite Party, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainant was at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

13.          The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It is clearly proved from the aforesaid paras that the Opposite Party failed to offer/deliver possession of the unit, complete in all respects, to the complainant, as per terms and conditions of the Agreement and the possession offered by the complainant vide intimation of possession letter dated 03.02.2014 (Annexure C-5) i.e. only a paper possession. On the other hand, the amount deposited was also not refunded to the complainant alongwith interest, when request for the same was made by him and, as such, there is continuing cause of action, in his favour, 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 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for  the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.

14.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.74,37,458/-, deposited by him. It is an admitted fact that the  Opposite Party is unable to deliver  possession of the unit, in question, complete in all respects, to the complainant within the stipulated time frame and possession offered to the complainant vide letter dated 03.02.2014 in respect of the unit, is only a paper possession and not more than that. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit, in question. The  Opposite Party, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the Opposite Party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

15.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is true that an amount of          Rs.74,37,458/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the  Opposite Party, for its own benefit. There is no dispute that for making delayed payments, the  Opposite Party was charging heavy rate of interest (compounded quarterly @24% 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  complainant is certainly entitled to get refund of the amount deposited by him, alongwith interest @12% p.a. compounded, from the respective dates of deposits till realization. 

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

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

18.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-

1. To  refund   the  amount Rs.74,37,458/-, to  the complainant, alongwith interest compounded @ 12% 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 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.50,000/- to the complainant.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with interest compounded     @15% p.a., instead of interest compounded    @12% p.a., from the date of default, and interest compounded @12% p.a., on the  amounts mentioned at Clause (ii) & (iii), from the date of filing the complaint, till realization.

 

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

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

Pronounced.

June 16, 2017.                                Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

rb

 

                           STATE COMMISSION

(Complaint Case No.985 of 2016)

[Amarinder Singh Walia Vs. M/s Emaar MGF Land Limited]

Argued by:      

 

Sh.  Lakhbir Singh, Advocate for the complainant.

Sh.  Ashim Aggarwal, Advocate for the Opposite Party.

 

Dated the 16^th day of June, 2017

 

ORDER

 

            Vide our detailed order of the even date, recorded separately, this complaint has been partly accepted, with costs.

 

 

(DEV RAJ) MEMBER

(JUSTICE  JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

rb