Chandigarh

StateCommission

CC/106/2015

Col. Karan Singh Thandi - Complainant(s)

Versus

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

Kabir Sarin, Adv.

31 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	106 of 2015
Date of Institution	:	29.05.2015
Date of Decision	:	31.08.2015

 

1. Col. Karan Singh Thandi, resident of Thandi Farm, Opposite GH-91, Sector 20, Panchkula-134109.
2. Vineet Minocha resident of House No.948, Sector 8, Panchkula

……Complainants

V e r s u s

1. M/s Emaar MGF Land Private Limited, through its Managing Director/Principal Officer, having its Registered Office at MGF House 17-B, Asaf Ali Road, New Delhi-110002.  
2. M/s Emaar MGF Land Limited, S.C.O. 120-122, 1^st Floor, Sector 17-C, Chandigarh.

              .... Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:         MR. DEV RAJ, PRESIDING MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:       Sh.  Kabir Sarin, Advocate for the complainants.

                        Sh. Sanjeev Sharma, Advocate for the Opposite      Parties.

 

PER MRS. PADMA PANDEY, MEMBER

 

            The facts, in brief, are that the Opposite Parties made a number of assurances, through various newspapers, marketing emails and telemarketing, with regard to launching of their integrated residential township, under the name and style of Mohali Hills, in Sectors 105, 108 and 109,  Mohali, Punjab, having salient features.  On such assurances, Mr. Ramesh Kumar, applied to the Opposite Parties, vide Advance Registration No.1727, for the allotment of a residential plot, measuring 300 square yards, in their proposed township, and paid a sum of Rs.10,35,000/-, as booking amount, on 05.09.2006.

2.       Mr. Ramesh Kumar, was allotted plot No.220, approximately measuring 300 square yards, in Augusta Greens, Sector 109, Mohali Hills, Mohali, @ Rs.11,500/- per square yard. The basic price of the said plot was to the tune of Rs.34,50,000/-. Apart from this amount, the allottee was also required to pay a sum of Rs.1,69,104/-, towards External Development Charges plus (+) Rs.4,31,250/-, towards Preferential Location Charges. Thus, the total sale consideration, in the sum of Rs.40,50,354/-, was required to be paid by the allottee, towards the said plot. Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, in respect of plot No.220 was executed between Mr. Ramesh Kumar and the Opposite Parties, at Chandigarh.
3.       It was stated that, subsequently, the complainants, purchased the said plot, from Mr. Ramesh Kumar, the original allottee, as they (complainants) were in dire need of a plot, to construct a house and reside therein. Accordingly, the Opposite Parties, vide letter dated 26.11.2007 Annexure C-1, transferred plot No.220, in the name of the complainants. Endorsement dated 31.10.2007 was made by the Opposite Parties, in this regard, on all the required documents. In this manner, the rights and interests, in plot No.220, were transferred, in favour of the complainants, by the Opposite Parties, as they stepped into the shoes of Mr. Ramesh Kumar.
4.       It was further stated that, thereafter, as per the installment payment plan, the complainants, paid the entire sale consideration to the tune of Rs.40,50,355/-,  in respect of plot No.220, to the Opposite Parties. It was further stated that according to Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, the Opposite Parties were to hand over physical possession of the residential plot, in favour of the complainants,  within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement). It was further stated that it was also mentioned in Clause 8 of the said Agreement, that, in case, the Opposite Parties, failed to deliver possession of plot No.220, within the stipulated period, they were liable to pay penalty/compensation, to the allottee, @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay. Thus, the Opposite Parties were to deliver possession of plot No.220, to the allottee, latest by 03.07.2010, which was not even offered, in the instant case.
5.       It was further stated that the complainants approached the Opposite Parties, in the year 2010, and even thereafter, a number of times, with a request to deliver possession of plot No.220, but they failed to give any positive reply.
6.       It was further stated that the Opposite Parties collected the huge amount, towards price of plot No.220, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 3 years, from 04.07.2007, but they did not abide by their commitment. It was further stated that, as such, the amount of Rs.40,50,355/-, deposited by the complainants, towards sale price of the plot, was utilized by the Opposite Parties, as a result whereof, they were caused huge financial loss.
7.       It was further stated that since the Opposite Parties had not offered physical possession of plot No.220, complete in all respects, in favour of the complainants, they were not able to construct house thereon, and reside in the same. It was further stated that, thus, the complainants underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot, to them, and also suffered further financial loss, on account of non-payment of compensation.
8.       It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to refund the amount of Rs.40,50,355/-, alongwith interest @12% P.A., from the respective dates of deposits till realization; pay compensation to the tune of Rs.3 lacs, on account of   deficiency in rendering service, mental agony and physical harassment; and  cost of litigation, to the tune of Rs.75,000/-.
9.       The Opposite Parties, put in appearance on 02.07.2015, and filed their joint written version, on 13.08.2015. In the joint written version, it was pleaded by the Opposite Parties, that since the complainants already owned one house, address whereof, had been mentioned in the head-note of the instant complaint, as also they had purchased another unit No.109-AP-160-400, in their project, as such, they (complainants) did not fall within the definition of consumers, as defined under Section 2 (1) (d) of the Act, meaning thereby, that they (complainants) had purchased the plot, in question, with an intention, to earn profits, after selling the same, as and when there was escalation in the prices of real estate. It was further pleaded that since possession of the plot, in question, was to be delivered by 03.07.2010, cause of action, for the first time to file the consumer complaint, accrued to the complainants, within a period of two years, from that date (03.07.2010), and, as such, the complaint having been filed on 29.05.2015, was palpably barred by time. It was further pleaded that this Commission has got no pecuniary and territorial Jurisdiction to entertain and decide the complaint. It was further pleaded that since the detailed and voluminous evidence was required to be led, for adjudication of the instant case, as such, the complainants were required to be relegated to an alternative remedy of Arbitration, as provided for under Clause 39 of the  Plot Buyer's Agreement dated 04.07.2007, Annexure C-2. It was further pleaded that, as such, the Consumer Complaint under Section 17 of the Act, was not maintainable, before this Commission. It was further pleaded that time was not the essence of contract. It was further pleaded that since the complainants sought the enforcement of Agreement, in respect of the immovable property, only a suit for specific performance, in the Civil Court, was maintainable. The factum of allotment of plot No.220, in favour of Mr. Ramesh Kumar, and subsequent transfer thereof, in favour of the complainants were admitted. It was also admitted that the Opposite Parties had received the amount of Rs.40,50,355/- (infact Rs.40,50,354/-), from the complainants,  in the manner, referred to above. However, it was stated that the said amount also included delayed payment interest, to the tune of Rs.3,40,104/-. Execution of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, between Mr. Ramesh Kumar and the Opposite Parties, and subsequent endorsement thereof, in favour of the complainants,  was also admitted. It was also admitted that the  possession of plot No.220, was not even offered to the complainants, by the stipulated date i.e. 03.07.2010, or even till date. It was further stated that possession of the unit, in question, could not be offered and delivered to the complainants, for want of basic amenities. It was further stated that the Opposite Parties were ready to relocate the complainants, to some other plot, in their project, at Mohali. It was further stated that it was well within the knowledge of the complainants that for any delays, stipulated penalty had been provided in the said Agreement, which safeguarded their rights. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
10.       In the rejoinder, filed by the complainants, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
11.       The complainants, in support of their case, submitted their separate affidavits, by way of evidence, alongwith which, a number of documents were attached.
12.       The Opposite Parties, in support of their case, submitted the affidavit of Mr.Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached. 
13.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 
14.       The first question, that falls for consideration, is, as to whether, the complainants are consumers, as defined by Section 2 (1) (d) (ii) of the Act, or not. No doubt, it was submitted by the Counsel for the Opposite Parties that since the complainants already owned one house, address whereof, had been mentioned in the head-note of the complaint, as also they had purchased another unit No.109-AP-160-400, in their project, as such, they (complainants) did not fall within the definition of consumers, as defined under Section 2 (1) (d) of the Act, meaning thereby, that they (complainants) had purchased plot No.220, with an intention, to earn profits, after selling the same, as and when there was escalation in the prices of real estate. The submission of the Counsel for the Opposite Parties, in this regard, does not appear to be correct.  First, coming to the submission of the Opposite Parties, regarding mention of address of a house, in the head-note of the complaint, by the complainants, it may be stated here that mere mentioning of any address therein (headnote of the complaint) does not mean that the complainants are the owners thereof, until and unless, it is proved by the Opposite Parties, by way of placing on record, cogent and convincing material evidence, in that regard. As far as the second submission of the Opposite Parties, regarding purchase of another unit No.109-AP-160-400, in their project, by the complainants is concerned, it may be stated here, that the provisional allotment letter (Annexure R-1) placed by them, to substantiate their stand reveals that the same pertains to allotment of a plot to one Mr.Jai Prakash, resident of District Sonipat, Haryana, who had purchased the said unit (unit No.109-AP-160-400), in  Augusta Park, Sector 109, Mohali. No doubt, perusal of this document further reveals that the allotment of plot No.109-AP-160-400 was endorsed in favour of Sh.Karan Singh Thandi, complainant No.1. However, it may be stated here, that mere placing on record, copy of the provisional allotment letter (Annexure R-1) of plot No.109-AP-160-400, which was initially allotted to one Mr.Jai Prakash, and, thereafter endorsed in favour of complainant No.1, in the absence of vital documents viz. Plot Buyer's Agreement, payment receipts etc. etc. in respect thereof (plot No.109-AP-160-400), is not sufficient to establish that the allotment thereof (plot) stands in favour of complainant No.1. All the vital documents, referred to above, could very well be said to be in possession of the Opposite Parties and they could place the same on record, but they failed to do so. On the other hand, there is no reliable evidence, on the record, that the complainants have a number of other residential units, and houses, or commercial plots. Even no evidence, was produced by the Opposite Parties, that the complainants are the property dealers, and, as such, dealing in the sale and purchase of the property, on regular basis, to earn profits. Under these circumstances, by no stretch of imagination, it could be said that plot No.220, was purchased by the complainants, by way of investment, with a view to earn huge profits. The complainants, thus, fall within the definition of consumers, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.
15.       The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. It may be stated here, that according to the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, the possession was to be delivered, in respect of the plot, in question, within a maximum period of three years, from the date of signing the same, in favour of the complainants. Neither the possession of plot, in question, was handed over to the complainants, by the stipulated date i.e. 03.07.2010, for want of basic amenities, at the site, as has been admitted by the Opposite Parties, in their written version, nor the penalty, as provided in the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2 was paid to them nor the amount deposited by them (complainants) was refunded to them. There was, thus, a continuing cause of action, in favour of the complainants, to file the complaint. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the petitioner, knowing fully well that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon'ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.  
16.       The  next question, that falls for consideration,  is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, a consumer complaint could be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction, whereof a part of cause of action arose to her. In the instant case, the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, in respect of the plot, in question, was executed, at Chandigarh, as is evident from page 49 of the file. It means that a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission.  This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Parties, in their written version, that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, therefore, being devoid of merit, must fail, and the same stands rejected.
17.       The next question, that falls for consideration, is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the price of the plot, in question, including everything, was  Rs.40,50,354/-. The complainants have sought  refund of the amount of Rs.40,50,355/- (infact Rs.40,50,354/-), paid by them, alongwith interest @12% P.A., from the respective dates of deposits; compensation to the tune of Rs.3 lacs, for deficiency in service, mental agony and physical harassment; and cost of litigation, to the tune of Rs.75,000/-. The aggregate value of the refund plus (+) compensation, and cost, claimed by the complainants, in the complaint, [excluding the interest claimed @12% P.A. aforesaid], came to be around Rs.44,25,355/- and, as such, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection, taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
18.       The next question, that arises for consideration, is, as to whether, interest @12% P.A., claimed by the complainants, in the manner, referred to above, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission.  In Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/-it (amount) will exceed Rs.20 lakhs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

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

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

19.       The observations made, in the aforesaid case, are fully applicable, to the facts of the instant case. In the instant complaint, interest @12% P.A., claimed by the complainants, in the manner, referred to above, was not required to be added, for determining the pecuniary Jurisdiction of this Commission. The question thus stands answered, in the manner, referred to above.
20.       The next question, that falls for consideration, is, as to whether, the consumer complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the existence of an arbitration Clause in Plot Buyer's Agreement dated 04.07.2007, Annexure C-2.  With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, which reads as under ;

“3.Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

21.       Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in  Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the  Opposite  Parties, being devoid of merit, must fail, and the same stands rejected.
22.       It was next submitted by  the Counsel for the Opposite Parties,  that since the complainants sought enforcement of the  Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, in respect of the immoveable property, as such, they should have availed remedy to file a suit, for specific performance, in the Civil Court only and, as such, the consumer complaint was not maintainable. The submission of the Counsel for the Opposite Parties, in this regard, also does not appear to be correct. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the unit, in question, and they were allotted the same, in the manner, referred to above, for consideration. According to Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver physical possession of the unit, within a period of 24 months, from the date of execution of the same (Agreement), but not later than three years. According to Clause 23 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, the Opposite Parties were responsible to provide internal services, within the Project, which interalia included laying of the roads, water lines, sewer lines, electric lines etc. etc. It was not that the complainants purchased the unit, in an open auction, on “as is where is basis”, without any further promise of the Opposite Parties, of providing amenities/facilities, and developing the area, where the unit, in question, is situated.   Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential  users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

23.       From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under  Section 3 of the Act, can be availed of by them, as they fall within the definition of consumers, as stated above. In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
24.           The next question, that falls for consideration, is, as to whether, time was essence of the contract or not. It may be stated here that, as stated above, as per Clause 8  of the  Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, it was clearly stipulated that possession shall be delivered within two years, but not later than three years, from the date of execution of the same (Agreement). Even after the lapse of more than five years from the stipulated date, possession of the plot, in question, was not delivered to the  complainants. The time was, thus, unequivocally made the essence of contract. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
25.       No doubt, the Counsel for the Opposite Parties, placed reliance on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, a case decided by the Hon’ble Supreme Court  to contend that time was not the essence of contract. The facts of  Smt. Chand Rani's case (supra), are distinguishable, from the facts of the instant case. Smt. Chand Rani's case (supra), related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms in the Agreement. Since the time for delivery of possession was not mentioned in the Agreement in that case, it was held that time was not the essence of contract. Whereas, in the instant case, as per Clause 23 of the Plot Buyer's  Agreement dated 04.07.2007, Annexure C-2, the  Opposite Parties were to hand over physical possession of the said plot, in favour of the complainants, within a period of 36 months, from the date of execution of the same (Plot Buyer's  Agreement dated 04.07.2007, Annexure C-2), i.e. latest by 03.07.2010. Even after the expiry of more than about 8 years, from the date of execution of the Agreement aforesaid, and more than about 5 years, from the stipulated date, the possession thereof, was not delivered to the complainants. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Counsel for the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
26.       The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the  complainants. As stated above, according to Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver physical possession of the unit, in question, within a period of 24 months, from the date of execution of the same (Agreement), but not later than three years. It is, thus, evident, from this Clause, that the Opposite Parties were required to deliver possession of the unit, in question, in favour of  the complainants,  within the maximum period of three years, from the date of execution of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, i.e. latest by 03.07.2010. As held above, possession of the unit, in question, was neither offered nor delivered to the complainants,  even by the time, the complaint was filed. On the other hand, the Opposite Parties have already received an amount of Rs.40,50,354/-, towards the said plot, as is evident from the statement of account Annexure C-3, at page 119 of the file. By making a misleading statement, that possession of the unit, was to be delivered within the maximum period of three years, from the  date of execution of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.
27.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.40,50,354/-, deposited by them, towards the part price of plot, in question. The complainants, in the complaint have sought refund of the amount, deposited by them, towards the same. As stated above, the Opposite Parties, in their written version, frankly admitted that they (Opposite Parties) were not able to deliver possession of the plot, in question, to the complainants, by providing all amenities, as mentioned in the Agreement, till date. Thus, we are of the considered opinion, that the complainants cannot wait for an indefinite period, at the whims and fancies of the Opposite Parties, for delivery of possession of the plot, in question. Under these circumstances, the complainants are entitled to the refund of amount, deposited by them, towards the said plot.  By not refunding the amount to the complainants, the Opposite Parties were deficient, in rendering service.
28.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount of Rs.40,50,354/-, if so, at what rate. The complainants were deprived of their hard earned money, to the tune of Rs.40,50,354/-, on the basis of misleading information, given by the Opposite Parties, that they would be handed over legal physical possession of the plot, in question, on or before 03.07.2010, but they failed to do so. The complainants were, thus, caused financial loss.  Hard earned money, deposited by the complainants, towards the part price of plot, in question, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Parties had been charging compound interest @15% P.A., from the complainants, as per Clause 3 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2. It is therefore, held that the Opposite Parties, by neither delivering possession of the plot, by the stipulated date, nor refunding the amount to the complainants, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainants, are, thus, entitled to the refund of Rs.40,50,354/-, alongwith interest @12% P.A., from the respective dates of deposits.
29.       The next question, that falls for consideration, is, as to whether, the  complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainants. The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainants. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainants suffered a lot of mental agony and physical harassment, at the hands of the Opposite Parties, for a long number of years, as they failed to deliver the physical possession of plot No.220 to them  (complainants), by the promised date i.e. 03.07.2010. The complainants purchased the plot, with the hope to have a roof over their head, by raising construction thereon, but their hopes were dashed to the ground. Till date, i.e. even after the expiry of a period of more than about 5 years, from the promised date,   i.e. 03.07.2010, physical possession of the plot, has not yet been offered, to the complainants, by the Opposite Parties. The complainants underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation, on account of mental agony and physical harassment, caused to the complainants,  due to the acts of omission and commission of the Opposite Parties, as also escalation in prices of the real estate, if granted, to the tune of Rs.1,50,000/-, shall be reasonable, adequate and fair. The complainants,  are, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.
30.           The Counsel for the Opposite Parties, however, submitted that the parties being governed, by the terms and conditions of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2,  as per Clause 8 of the same (Plot Buyer’s Agreement), in case of delay, in the delivery of physical possession of residential plot, they (Opposite Parties), were only liable to make payment of penalty, in the sum of Rs.50/- (Rupees Fifty only) per sq.yd, per month, for such period of delay, beyond 3 (three years), from the date of execution of the same. It may be stated here, that such a submission of the Counsel for the Opposite Parties, would have been considered to be correct, had the complainants, prayed for the delivery of physical possession of residential plot. In the instant case, prayer for the refund of amount, was made by the complainants, as there was no progress, in development of the area, where the plot, in question, is located,  and even the delivery of possession thereof, was not in sight. This Clause could be invoked by the Opposite Parties, only, in the event, the complainants had sought relief of delivery of physical possession of the residential plot. As stated above, the hard earned money of the complainants was used by the Opposite Parties, for investment, for a long time. They were neither given physical possession of the residential plot, nor refund of the amount. If the Opposite Parties are allowed to invoke Clause 8 of the Agreement, in the instant case, that would amount to enriching them, at the cost of the complainants. Under these circumstances, shelter cannot be taken by the Opposite Parties, under Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2. Had the complainants prayed for possession of the residential plot, in question, the matter would have been different. The complainants, in our considered opinion, as stated above, are entitled to the refund of amount, alongwith interest @12% P.A.  
31.           No other point, was urged, by the Counsel for the parties.
32.           For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed, as under:-
    1. To  refund the amount Rs.40,50,354/-, to  the complainants, alongwith interest @ 12% per annum, 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.1,50,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices of the real estate, within 45 days, from the date of receipt of a certified copy of this order.
    3. To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
    4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A., instead of 12% P.A., from the respective dates of deposits onwards, till realization, and interest @12% P.A., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs

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

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

Pronounced.

31.08.2015

 

Sd/-

[DEV RAJ]

PRESIDING MEMBER

 

 

Sd/-[

(PADMA PANDEY)

        MEMBER

Rg.