Chandigarh

StateCommission

CC/163/2017

Jaspreet Singh - Complainant(s)

Versus

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

Rajmat Singh, Adv.

04 Jul 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	163 of 2017
Date of Institution	:	20.02.2017
Date of Decision	:	04.07.2017

 

Jaspreet Singh aged about 34 years S/o Balbir Singh resident of Village Ghaniwal Tehsil Nabha District Patiala now resident of 6/160 SMITH STREET, LARRAKEYAH, NT-82 0 AUSTRALIA, through his power of attorney namely Sh. Balbir Singh 

……Complainant

V e r s u s

1. M/s Emaar MGF Land Limited, (EMAAR) having its branch office at First Floor SCO No.120-122, Sector 17-C, Chandigarh, through its authorized signatory/representative.
2. M/s Emaar MGF Land Limited, having its registered office at ECE House No.28, Kasturba Gandhi Marg, New Delhi – 110001, through its authorized signatory/representative.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Rajmat Singh, Advocate for the complainant.

Sh.  Ajiteshwar Singh, Advocate for the Opposite Parties.

PER PADMA PANDEY, MEMBER

              The facts, in brief, are that the complainant acting upon the information given by the Opposite Parties in various leading newspapers had sought the allotment of independent floor and paid the booking amount of Rs.3 lacs as booking amount (Annexure C-2).  Subsequently, Independent Floor Buyers Agreement was executed between the parties on 15.12.2009 and the complainant was allotted independent floors/unit No.579/GF Sector 108 “The Terrace” measuring 1502 square feet for the total sale price of Rs.50,65,631/- (Annexure C-3). As per Clause 20.1 of the Agreement, the Opposite Parties promised to hand over possession of the said independent floor within 36 months with grace period of three months from the date of Agreement i.e. latest by 15.04.2013. The complainant deposited the total amount of Rs.49,90,107/- in respect of the unit, in question.  It was further stated that the complainant used to make payment, as per the payment plan. It was informed to the complainant that when the Opposite Parties failed to offer possession of the unit, the complainant vide letter dated 25.07.2012 requested the Opposite Parties to provide any other alternate unit (Annexure C-5). It was further stated that the Opposite Parties re-allotted the other unit bearing No.302 in “The Views”, Sector 105, Mohali and executed the Agreement dated 01.04.2013. It was further stated that the Opposite Parties were bound to deliver possession of the said unit within 36 months with grace period of 90 days, which comes to 22.06.2016, as per Clause 21.1 of the Agreement dated 01.04.2013. Thereafter, the complainant filed an application before the Permanent Lok Adalat, Mohali for refund of the deposited amount of Rs.49,90,107/- alongwith interest but the same was withdrawn with permission to file the same on the same cause of action (Annexure C-7). The complainant also raised a loan of Rs.27 lacs from HDFC for making payment to the Opposite Parties. It was further stated that the Opposite Parties have utilized the hard earned money of the complainants about 7 years and have earned huge profit. It was further stated that the Opposite Parties failed to offer/hand over possession of the unit to the complainant. 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 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 Parties, in their joint written version, have admitted regarding booking of the unit, execution of the Agreement and payment of receipt of Rs.49,90,107/- in respect of the unit, in question. It was stated that the construction of the then proposed independent floors were not found feasible, a different unit (not being an independent floor) was offered to the complainant on 17.08.2012 i.e. prior to the period specified by under the first agreement. The complainant communicated his acceptance of the alternate site being TVM-H3-F03-302 located at The Views, Sector 105, Mohali Hills only by October 29, 2012 (Annexure R-1). It was further stated that an application form for allotment of the subject property was executed by the complainant on 14.02.2013 (Annexure R-2). Thereafter, through letter dated 22.03.2013 (Annexure R-3), the Opposite Parties provisionally allotted the subject property to the complainant. It was further stated that Unit Buyer’s Agreement in respect of the subject property was only executed on 01.04.2013 (Annexure C-6). It was further stated that only an amount of Rs.49,90,107/- was paid by the complainant against the total sale consideration of Rs.58,46,311/-, as is evident from statement of account (Annexure R-6). It was further stated that the complainant is a non-resident Indian, who already has one residential dwelling unit in the State of Punjab and, as such, he purchased the said property for speculation/investment purposes and he is not a consumer, as envisaged under the Consumer Protection Act, 1986. It was further stated that the external plaster on Tower H3, where the subject property is located has been completed and flooring work is under progress and it is anticipated that the possession would be offered around September, 2017. It was further stated that the subject property is located in the State of Punjab, as such, this Commission has no territorial jurisdiction to entertain the complaint. It was further stated that the complaint is hopelessly time barred, as the original cause of action, if any, accrued in favour of the complainant in the year 2012 and the complaint filed by the complainant in the month of February, 2017. Moreover, the Opposite Parties 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 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.

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

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

5.           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 Parties, being devoid of merit, is rejected.

6.           The next objection taken by the Opposite Parties that the subject property is located in the State of Punjab and, as such, this Commission has no jurisdiction to entertain and decide the complaint. 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 them. In the instant case, it is evident from the record, that Independent Floors Buyer’s Agreement dated 15.12.2009  (Annexure C-3) was executed between the parties at Chandigarh. Not only this, receipts/acknowledgment-cum-receipt(s) (Annexure C-2, C-4/B to C-4/D, C-4/E & C-4/F), payment request letter dated 01.04.2013 (at page No.76 of the complainant’s documents) were sent by the Opposite Parties from their Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh”. 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 Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

7.           The objection taken by the Opposite Parties, to the effect that the complainant did not fall within the definition of “Consumer”, as per the Consumer Protection Act, 1986, as the complainant is a Non-resident Indian, who already has one residential dwelling unit in the State of Punjab, as such, he purchased the unit in the project of the Opposite Parties for speculation/investment purposes. After going through the record, we are not agreeing with the contention of the Counsel for the Opposite Parties because the complainant, in his rejoinder, has clearly stated that the complainant was not NRI upto 17.03.2015 when he shifted to Australia and now currently working in Darwin (Australia). He further stated that the complainant does not own any house/residential property till now in India. It was further stated that the house at Village Ghaniwal is owned by Sh.Balbir Singh, who is the father and power of attorney of the complainant.  Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is property dealer, and deals in the sale and purchase of property. If for the sake of arguments, we believe that the complainant was NRIs before 17.03.2015, even no law debars an NRI, who basically belonged to India, to purchase a residential property in India. Under similar circumstances, the Hon'ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

                   Thus, in the absence of any cogent evidence, in support of the objection raised by the Counsel for the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that, the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. 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 Counsel for the Opposite Parties in this regard, being devoid of merit, is rejected.

8.            The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It may be stated here that since it has been clearly proved from the written statement of the Opposite Parties that they (Opposite Parties) failed to offer/deliver possession of the earlier unit as well as reallotted unit, in question, to the complainant, as such, there is continuing cause of action, in their 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 Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

9.           The next question, that falls for consideration before us is whether the Opposite Parties offered possession of the earlier unit/re-allotted unit, complete in all respects, to the complainant. It is clearly proved from Independent Floor Buyer’s Agreement dated 15.12.2009 (Annexure C-3), the complainant was allotted  independent floors unit No.579/GF in Location : Pinewood Park, Sector 108. It is the admitted fact by both the parties that as per the Agreement, possession of the unit was to be delivered within a period of 36 months with grace period of three months from the date of Agreement i.e. latest by 15.04.2013. It is relevant to mention here that the complainant has failed to place on record clause 20.1 of the Agreement because the said page is missing in the Agreement. The complainant has placed on record email dated 25.07.2012 (Annexure C-5) which reads thus :-

“As communicated many times earlier, I had not got any confirmation regarding the possession of Unit Number TTM-GF-579.

Please respond at the earliest as I need it urgently, if it is not ready kindly provide me the alternate unit which is ready to move in.”

From the afore-extracted email, it is clearly proved that the Opposite Parties failed to deliver possession of the earlier unit to the complainant till email dated 25.07.2012, therefore,  the complainant requested to the Opposite Parties for alternate unit. The Opposite Parties in their written statement have stated that the construction of the then proposed independent floors were not found feasible, therefore, a different unit bearing No. TVM-H3-F03-302 was located at The Views, Sector 105, Mohali Hills was offered to the complainant, which was accepted by him vide letter dated 29.10.2012 and Unit Buyer’s Agreement was also executed between the Parties on 01.04.2013 (Annexure C-6). A bare perusal of the said Agreement (Annexure C-6) clearly reveals that the same was not executed between the parties because it was undated and the same signed only by the complainant and not duly stamped and signed by any authorized representative or responsible official of the Opposite Parties. Moreover, the Opposite Parties in para No.7 of their written statement have clearly stated that “the external plaster on Tower H3, where the subject property is located has been completed and flooring work under progress and it is anticipated that the possession would be offered around September, 2017.” So, it is clearly proved that the Opposite Parties failed to offer/deliver possession of the earlier unit as well as alternate unit to the complainant.

10.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.49,90,107/-, as claimed by him. It is the admitted fact that the complainant deposited an amount of Rs.49,90,107/- as is evident from statement of account (Annexure R-6) and after receipt of the aforesaid huge amount, the Opposite Parties failed to offer/deliver  actual physical possession of the unit, complete in all respects, to the complainant, within the stipulated period, as mentioned in the Agreement or even by the time when the complaint was filed. Even, in para No.7 of their written statement, the Opposite Parties clearly admitted that ““the external plaster on Tower H3, where the subject property is located has been completed and flooring work under progress and it is anticipated that the possession would be offered around September, 2017.” So, it is clearly proved that the Opposite Parties were unable to deliver possession of the earlier as well as re-allotted unit, complete in all respects, to the complainant even when the complaint was filed. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Parties, 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 Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

11.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.49,90,107/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit.  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, to the tune of Rs.49,90,107/- alongwith interest @15% p.a., from the respective dates of deposit, till realization. 

12.         As far as the plea taken by the Counsel for the Opposite Parties, at the time of arguments, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) 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, due to deficiency in the services of the Opposite Parties or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the Opposite Parties, that they were willing to offer possession complete in all respects by the stipulated time, 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 Parties, in this regard, has no legs to stand and is accordingly rejected.

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

14.         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 of Rs.49,90,107/- to  the  complainant, alongwith interest @15% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2.00 lacs, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a.,  instead of @15% p.a. from the date of default, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

15.         However, it is made clear that, if the  complainant, in the present case, has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.

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

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

Pronounced.

04.07.2017                                                              Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 rb