Chandigarh

StateCommission

CC/105/2015

Gagan Gupta - Complainant(s)

Versus

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

Gaurav Chopra,Adv.

21 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	105 of 2015
Date of Institution	:	29.05.2015
Date of Decision	:	21.08.2015

 

1. Gagan Gupta son of Sh. R.M. Gupta.
2. Simmi Gupta wife of Sh.Gagan Gupta.

Both residents of House No.1076, 1^st Floor, Sector 37-B, Chandigarh.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Limited, having its registered office at ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Authorized Representative.
2. M/s Emaar MGF Land Limited, having its Branch Office at at S.C.O. 120-122, First Floor, Sector 17-C, Chandigarh, through its Authorized Representative.

….Opposite Parties No.1 and 2

3. Housing Development Finance Corporation Limited, a Company registered under the Companies Act, 1956, having its Registered Office at Raman House, 169, Backbay Reclamation, Mumbai-400020, through its Authorized Representative.

              ....  Proforma Opposite Party

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

               

Argued by: Sh.Gaurav Chopra, Advocate for the complainants.

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

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

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that Opposite Parties No.1 and 2, floated a scheme, for the allotment of residential apartments, in their upcoming project, under the name and style of “The Views”, Sector 105, S.A.S. Nagar, Mohali, District Mohali, Punjab. In response to the assurance given by the representative of Opposite Parties No.1 and 2, with regard to the salient features of the project, aforesaid, the complainants applied for the allotment of an apartment, measuring 1350 square feet, on payment of Rs.7 lacs, as earnest money, vide application dated 09.07.2011.

2.       It was stated that, as such, vide provisional allotment letter dated 25.07.2011 Annexure C-1, the complainants were allotted apartment No.TVMH2-F01-104, measuring 1350 square feet, in “The Views”, Mohali Hills, Sector 105, S.A.S. Nagar, District Mohali, Punjab, alongwith one car parking space. The basic sale price of the said apartment was to the tune of Rs.36,48,105/-. Apart from this amount, the complainants were also required to pay Rs.1,50,000/- per parking bay, Rs.1,51,619/- towards External Development Charges (EDC), Rs.1,18,800/- towards Preferential Location Charges, and Interest Free Maintenance Charges, to the tune of Rs.13,500/-. Unit Buyer's Agreement dated 24.08.2011 Annexure C-3, in respect of the said apartment, was executed between the parties, at Chandigarh. The complainants opted for down payment plan.
3.       It was further stated that, thereafter, since the complainants availed of loan, to the tune of Rs.29,50,000/- from the Proforma Opposite Party, as such, Tripartite Agreement dated 30.08.2011 was executed amongst the parties. It was further stated that the complainants kept on making payment of instalments, towards the said apartment, as per the payment plan opted by them. It was further stated that, as such, the complainants had already made payment of Rs.39,37,941/-, towards the part price of apartment No.TVMH2-F01-104.
4.       It was further stated that according to Clause 21.1 of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3, Opposite Parties No.1 and 2 were required to hand over physical possession of the said apartment, in favour of the complainants, within a period of 36 months, from the date of execution of the same (Unit Buyer's  Agreement). It was further stated that it was also mentioned in Clause 23.1 of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3, that, in case, Opposite Parties No.1 and 2, failed to deliver possession of apartment No.TVMH2-F01-104, within the stipulated period, they were liable to pay penalty/compensation, to the complainants, @ Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Thus, Opposite Parties No.1 and 2 were to deliver possession of the apartment, in question, to the complainants, latest by 23.08.2014.
5.       It was further stated that despite making payment of Rs.39,37,941/-, possession of apartment No.TVMH2-F01-104, was not offered to the complainants. It was further stated that the complainants sent email dated 16.04.2015 Annexure C-7 to Opposite Parties No.1 and 2, to apprise them about the status of project. It was further stated that vide email  letter dated 22.04.2015 Annexure C-7, it was intimated by Opposite Parties No.1 and 2 that they were not in a position to deliver possession of apartment No.TVMH2-F01-104, for want of basic amenities and the same could only be delivered by first quarter of 2016.
6.       It was further stated that Opposite Parties No.1 and 2 collected the huge amount of Rs.39,37,941/-, towards the part price of apartment, in question, by making a false promise, that physical possession thereof, shall be handed over within a period of 36 months, from the date of execution of the  Unit Buyer's Agreement dated 24.08.2011 Annexure C-3, but they did not abide by their commitment. It was further stated that, in order to pay the amount towards the said unit, the complainants had obtained loan from the HDFC Limited, for which they had been paying huge interest alongwith the installments. It was further stated that, as such, the amount deposited by the complainants, towards the part price of apartment, was utilized by Opposite Parties No.1 and 2, as a result whereof, they were caused huge financial loss. It was further stated that the complainants also underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission, on the part of Opposite Parties No.1 and 2. Opposite Parties No.1 and 2 neither delivered possession of the apartment, nor refunded the amount deposited by the complainants.
7.       It was further stated that the aforesaid acts, on the part of Opposite Parties No.1 and 2, 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 Opposite Parties No.1 and 2, to refund the amount of Rs.39,37,941/-, alongwith interest @18% P.A. from the respective dates of deposits, till realization; compensation to the tune of Rs.2 lacs, on account of mental agony and physical harassment; and  cost of litigation, to the tune of Rs.55,000/-.
8.       The Opposite Parties, put in appearance, on 02.07.2015, through their Counsel.
9.       Opposite Parties No.1 and 2, filed their written version, on 11.08.2015. In the written version, Opposite Parties No.1 and 2, pleaded that since the complainants already owned one house, address whereof, had been mentioned in the head-note of the instant complaint, 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 apartment No.TVMH2-F01-104, 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 the complaint was not maintainable, as an Arbitration Clause existed, in the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3, and, in case of any dispute, the matter was to be referred to the Arbitration. It was further pleaded that the consumer complaint was not maintainable, because only a suit for specific performance, for the enforcement of Agreement, could be instituted. The factum, with regard to the allotment of apartment No.TVMH2-F01-104, measuring 1350 square feet, in “The Views”, Mohali Hills, Sector 105, S.A.S. Nagar, District Mohali, Punjab, in favour of the complainants, and deposit of the amount, mentioned in the complaint, towards the part price thereof, by them was admitted. It was also admitted that the Unit Buyer's  Agreement was executed between the parties at Chandigarh, on 24.08.2011,  It was also admitted that, as per Clause 21.1 of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3,  Opposite Parties No.1 and 2 were to hand over physical possession of the said apartment, in favour of the complainants, within a period of 36 months, from the date of execution of the same (Unit Buyer's  Agreement), failing which, as per Clause 23.1 of the same (Apartment), they were liable to pay penalty/ compensation, @ Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay. It was also admitted that possession of the apartment, in question, was not delivered to the complainants, by the stipulated date i.e. 23.08.2014, or even till date. It was stated that time was not the essence of contract. It was further stated that possession of the unit, in question, could not be delivered to the complainants, for want of basic amenities. It was further stated that final finishing works, in the Tower, in question, in which apartment No.TVMH2-F01-104 was allotted to the complainants, were going on, and possession thereof, was expected to be delivered by the third quarter of March 2016.  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 Unit Buyer's Agreement dated 24.08.2011 Annexure C-3, which safeguarded their rights. It was further stated that, in case, the complainants still wanted refund, the same would amount to surrender of the unit, and attract forfeiture charges, as per Clause 21.10, read with Clause 3.2 of the same (Buyer's Agreement). It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
10.       Opposite Party No.3 filed its written version, on 02.07.2015. In the written version, Opposite Party No.3, stated that the complainants had sought refund of Rs.39,37,941/-, which included the loan amount of Rs.27 lacs, out of the sanctioned amount of Rs.29,50,000/-, availed of by them (complainant) from it (Opposite Party No.3). It was further stated that, as on 30.06.2015, an amount of Rs.17,48,436/- was payable by the complainants. It was further stated that since neither any allegation had been levelled, nor any relief had been claimed against Opposite Party No.3, and it had only been impleaded as a Proforma Opposite Party, as such the complaint against it was liable to be dismissed. It was further stated that, however, in case, this Commission decided the complaint against Opposite Parties No.1 and 2, Opposite Party No.3 had the prior right of apportionment of its dues/loan amount. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.  
11.       The complainants, in support of their case, submitted their own separate affidavits, by way of evidence, alongwith which, a number of documents were attached.
12.       Opposite Parties No.1 and 2,  in support of their case, submitted the affidavit of 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 Opposite Parties No.1 and 2 that since the complainants already owned one house, address whereof, had been mentioned in the head-note of the complaint, 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 apartment No.TVMH2-F01-104, 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 Opposite Parties No.1 and 2, in this regard, does not appear to be correct.  It may be stated here that, mere mention of address of a house, in the head-note of the complaint, does not mean that the complainants are the owners thereof.  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 Opposite Parties No.1 and 2, that the complainants are the property dealers, and, as such, dealing in the sale and purchase of the property. Under these circumstances, by no stretch of imagination, it could be said that apartment No.TVMH2-F01-104, 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 Opposite Parties No.1 and 2, in their written statement, therefore, being devoid of merit, is rejected.
15.       The next question, that falls for consideration, is, as to whether, the consumer complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the reason, that an arbitration Clause existed, in the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3.  With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, which reads as under ;

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

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

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3, 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 Opposite Parties No.1 and 2, being devoid of merit, must fail, and the same stands rejected

16.       The next question, that falls for consideration, is, as to whether, time was the essence of contract or not.  It may be stated here, that, in the instant case, as stated above, as per Clause 21.1 of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3,  Opposite Parties No.1 and 2 were to hand over physical possession of apartment No.TVMH2-F01-104, in favour of the complainants, within a period of 36 months, from the date of execution of the same (Unit Buyer's  Agreement). It was further mentioned in Clause 23.1 of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3,  that, in case, Opposite Parties No.1 and 2  failed to deliver possession of the apartment, in question, within the stipulated period, they were liable to pay penalty/compensation, to the complainants, @ Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Thus, Opposite Parties No.1 and 2 were to deliver possession of the apartment, in question, to the complainants, latest by 23.08.2014. The time was, thus, unequivocally made the essence of contract. The submission of the Counsel for Opposite Parties No.1 and 2,  thus, being devoid of merit, must fail, and the same stands rejected.
17.         No doubt, the Counsel for Opposite Parties No.1 and 2, 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 21.1 of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3,  Opposite Parties No.1 and 2 were to hand over physical possession of the said apartment, in favour of the complainants, within a period of 36 months, from the date of execution of the same (Unit Buyer's  Agreement), i.e. latest by 23.08.2014. Even after the expiry of more than about 4 years, from the date of allotment of apartment No.TVMH2-F01-104 and about 12 months, 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 Opposite Parties No.1 and 2. The submission of the Counsel for Opposite Parties No.1 and 2, thus, being devoid of merit, must fail, and the same stands rejected.
18.        The next question, that falls for consideration, is, as to within which period, the delivery of possession of apartment No.TVMH2-F01-104, was to be given to the complainants. As stated above, according to Clause 21.1 of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3, Opposite Parties No.1 and 2 were to hand over physical possession of the apartment No.TVMH2-F01-104, in favour of the complainants, within a period of 36 months, from the date of execution of the same (Unit Buyer's  Agreement). It is, thus, evident, from this Clause, that Opposite Parties No.1 and 2 were required to deliver possession of apartment No.TVMH2-F01-104, in favour of  the complainants, within three years, from the date of execution of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3. Admittedly, possession of apartment No.TVMH2-F01-104, was not delivered to the complainants, by the stipulated date, or even by the time, the complaint was filed. Even, in the written version, Opposite Parties No.1 and 2 frankly admitted that the possession of apartment No.TVMH2-F01-104, could not be offered to the complainants, on account of non-development/construction at the site, and non-provision of basic amenities, and the same was expected to be delivered by the third quarter of the 2016.  It means that still Opposite Parties No.1 and 2 were not sure, as to on which date, the possession of apartment No.TVMH2-F01-104, would be delivered to the complainants, as they have stated only the expected time of delivery of the same. Admittedly,  more than about 90% of the sale consideration of apartment No.TVMH2-F01-104, had already been paid, by the time of filing the complaint, but possession of the same, was not delivered in favour of the complainants.  Now, even as on today, on account of pending development/construction works, as admitted by Opposite Parties No.1 and 2, firm date of possession of apartment No.TVMH2-F01-104, could not be given to the complainants. By making a misleading statement by Opposite Parties No.1 and 2, that the possession of apartment No.TVMH2-F01-104, shall be delivered within three years, from the  date of  execution of  the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3, and by not abiding by the commitments, they (Opposite Party), were not only deficient, in rendering service, but also indulged into unfair trade practice.
19.         The next question, that falls for consideration, is, as to whether,  since the complainants  sought enforcement of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3,  in respect of the immoveable property, only a suit for specific performance, under the Specific Relief Act, 1963, was maintainable. It may be stated here, that the complainants hired the services of Opposite Parties No.1 and 2, for purchasing apartment No.TVMH2-F01-104 and  they were allotted the same for consideration. According to Clause 21.1 of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3,  Opposite Parties No.1 and 2 were to hand over physical possession of apartment No.TVMH2-F01-104, in favour of the complainants, within a period of 36 months, from the date of execution of the same (Unit Buyer's  Agreement), by providing all the amenities and facilities. It was not that the complainants purchased the unit, in an open auction, on “as is where is basis”, without any further promise of Opposite Parties No.1 and 2  of providing amenities/ facilities, and developing the area, where the same (unit), 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”

20.         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 Opposite Parties No.1 and 2, being devoid of merit, must fail, and the same stands rejected.     
21.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.39,37,941/-, admittedly deposited by them, towards the part price of apartment No.TVMH2-F01-104. The complainants, in the complaint have sought refund of the amount, deposited by them, towards the same. As stated above, the Counsel for Opposite Parties No.1 and 2, frankly admitted that even Opposite Parties No.1 and 2 were not able to deliver possession of the apartment, in question, to the complainants, by providing all amenities, as mentioned in the Agreement, till date, and the same was only expected to be delivered by third quarter of 2016, on completion of the ongoing works. As stated above, more than 90% of the sale consideration, towards apartment No.TVMH2-F01-104, has already been paid by the complainants, but   possession of the same, was not delivered to them, as the same had not been constructed. However, the complainants cannot wait for an indefinite period, at the whims and fancies of Opposite Parties No.1 and 2, for delivery of possession of apartment No.TVMH2-F01-104. In our considered opinion, under these circumstances, the complainants are entitled to the refund of amount, deposited by them, towards the part price of apartment No.TVMH2-F01-104.  By not refunding the amount, Opposite Parties No.1 and 2 were deficient, in rendering service.
22.        The next question that arises for consideration, is, as to whether, the complainants are entitled to interest, if so, at what rate and from which date. The complainants were deprived of their hard earned money, to the tune of Rs.39,37,941/-, on the basis of misleading information, given by Opposite Parties No.1 and 2, that they would be handed over legal physical possession of the residential apartment, in question, on or before 23.08.2014, but they failed to do so. The complainants were, thus, caused financial loss.  The hard earned money of the complainants was utilized by Opposite Parties No.1 and 2, for a sufficient longer period. 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), Opposite Parties No.1 and 2 had been charging compound interest @15% P.A., from the complainants, as per Clause 20.1 of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3. The complainants are, thus, held entitled to interest on the amount ordered to be refunded to them.  Under    these    circumstances,  in    our  considered opinion,  if  interest @ 12% P.A., on the amount, referred to above,  from the respective dates of deposits, is granted, that will serve the ends of justice
23.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, for mental agony and physical harassment. 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 hard earned money of the complainants was used by Opposite Parties No.1 and 2, for a long time, without either delivering physical possession of the residential apartment or refunding the same (amount). The complainants purchased the residential apartment, by depositing a huge amount, with Opposite Parties No.1 and 2, in the hope of residing therein, to have a shelter. Their hopes were, however, dashed to the ground, when there was no complete construction of the residential apartment, nor the question of delivery of possession thereof, in the near future arose. The complainants  shall also not be able to purchase the apartment, like the one, in question, at the same rate, at which it was allotted to them, due to escalation in prices. The complainants, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of Opposite Parties No.1 and 2. In this view of the matter, the complainants, in our considered opinion, are entitled to compensation, for mental agony and physical harassment caused to them, at the hands of Opposite Parties No.1 and 2, as also escalation in prices of the real estate, to the tune of Rs.1,50,000/ (One lac fifty thousand) which could be said to be adequate and reasonable.
24.         The Counsel for Opposite Parties No.1 and 2, submitted that the complainants are only entitled to penalty @ Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay, as per Clause 23.1 of the Unit Buyer's Agreement dated 24.08.2011 Annexure C-3. This submission of the Counsel for Opposite Parties No.1 and 2, does not appear to be correct. Such a submission of the Counsel for Opposite Parties No.1 and 2, would have been considered to be correct, had the possession of apartment No.TVMH2-F01-104, been sought by the complainants and ordered by this Commission, to be delivered to them.  In the instant case, since in the circumstances referred to above, it has been held that the complainants are entitled to the refund of amount deposited by them, alongwith interest and compensation,  no such direction regarding payment of penalty/compensation, aforesaid, could be given. The submission of the Counsel for Opposite Parties No.1 and 2, in this regard, thus, being devoid of merit is rejected.
25.          No other point, was urged, by the Counsel for the parties.
26.          For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 and 2, are jointly and severally directed as under:-
    1. To  refund the amount Rs.39,37,941/-, 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. HDFC Limited (Opposite Party No.3) shall have the first charge on the amount ordered to be refunded, in favour of the complainants, to the extent it (amount) was found due to it against them (complainants).
    3. To pay compensation, in the sum of Rs.1,50,000/ (One lac fifty thousand) 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.
    4. To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
    5. In case, the payment of amounts, mentioned in Clauses (i) and (iii), is not made, within the stipulated period, then Opposite Parties No.1 and 2 shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A., instead of 12% P.A., from the respective dates of deposits, till realization, and interest @12% P.A., on the  amount of compensation, mentioned in Clause (iii), from the date of filing the complaint, till realization, besides payment of litigation costs
27.       Since neither any deficiency has been proved, on the part of Opposite Party No.3, nor any allegation with regard to the same has been levelled against it, by the complainants, the complaint qua it is dismissed, with no order as to costs.
28.       Certified Copies of this order be sent to the parties, free of charge.
29.       The file be consigned to Record Room, after completion.

Pronounced.

August 21, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

      MEMBER

 

Rg.