Chandigarh

StateCommission

CC/64/2015

Mr. Sumit Dhingra & anr. - Complainant(s)

Versus

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

Sandeep Bhardwaj, Adv.

08 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	64 of 2015
Date of Institution	:	06.04.2015
Date of Decision	:	08.06.2015

 

1. Mr.  Sumit Dhingra son of Sh. R. K. Dhingra
2. Mrs. Manju Dhingra wife of Sh. R.K. Dhingra

Correspondence Address:- House No.414, Sector 04, Panchkula, Haryana.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Limited, Registered Office at ECE House, 28, K.G. Marg, New Delhi-110001, through its Managing Director/Director/Authorized Signatory.
2. M/s Emaar MGF Land Limited, SCO No.120-122, 1st Floor, Sector 17-C, Chandigarh-160017, through its Managing Director/Director/Authorized Signatory.

              ....  Opposite Parties

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.Sandeep Bhardwaj, Advocate for the complainants.

                   Sh.Sanjeev Sharma, Advocate for the Opposite Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that since the complainants wanted to purchase one residential plot, they visited the project of the Opposite Parties, launched by them, under the name and style of Mohali Plots, Mohali Hills, Mohali, in Sector 104. It was stated that the complainants came to know that the plot, which was selected by them had been booked by one Mr. Satish Sekhri, on payment of Rs.5 lacs, as booking amount, vide receipt dated 22.07.2010 Annexure  C-1. It was further stated that Mr. Satish Sekhri had been allotted plot no.104-EP-18-250, in the said project of the Opposite Parties, vide provisional allotment letter dated 14.09.2010 Annexure  C-2. The basic sale price of the said plot was Rs.42,50,000/- (+) External Development Charges (EDC) and Preferential Location Charges (PLC).

2.       It was further stated that, thereafter the said plot was purchased by the complainants, from Ms.Satish Sekhri, with the approval of the Opposite Parties, and the amount of Rs.5 lacs was paid to him, by them (complainants), vide receipt Annexure C-3, as a result whereof, the Opposite Parties, transferred the  same (plot), in their (complainants) favour, intimation whereof was given to them vide letter dated 19.11.2010 Annexure  C-4.
3.       It was further stated that it was assured by the Opposite Parties that possession of plot no.104-EP-18-250,  complete in all respects, would be handed over to the complainants, within a maximum period of 18 months, from the date of execution of the Buyer's Agreement dated 30.11.2011.  The total sale consideration of plot no.104-EP-18-250 was to the tune of Rs.52,34,000/- i.e. Rs.42,50,000/- towards basic price, Rs.5,31,250/- towards Preferential Location Charges (PLC) and Rs.4,52,750/- towards External Development Charges (EDC). It was further stated that, as per the demands made by the Opposite Parties, by 18.04.2011, the complainants paid the total amount of Rs.26,56,250/-but the Buyer's Agreement was not executed.
4.       It was further stated that, instead of sending the Plot Buyers Agreement, the Opposite Parties kept on making demands of payment of installments, towards the said unit, despite the fact that more than 50% of the amount, in respect of plot no.104-EP-18-250, had already been paid to them by the complainants. It was further stated that, in the meanwhile, the complainants visited the site to see the development work and were shocked to see that the same had not even started. 
5.       It was further stated that after much persuasion, Plot Buyer's Agreement dated 30.11.2011 Annexure C-20, in respect of plot no.104-EP-18-250 was executed between the parties. It was further stated that, as per Clause 8 of the Plot Buyer's Agreement dated 30.11.2011 Annexure C-20,  the Opposite Parties were liable to deliver the possession of plot no.104-EP-18-250, to the complainants, within a maximum period of 18 months, from the date of execution of the same (Agreement), failing which they were liable to pay penalty @Rs.50/- per sq. yd, per month, for the period of delay. Thus, the Opposite Parties were required to deliver possession of plot no.104-EP-18-250, to the complainants, on or before 29.05.2013.
6.       It was further stated that the Opposite Parties, kept on demanding payment of installments, in respect of the said unit, even in the absence of development work at the site. It was further stated that by 25.04.2012, the complainants, in all, had made the payment of Rs.48,09,000/-, towards part price of plot no.104-EP-18-250, but, on the other hand, there was no progress of development at the site.
7.       It was further stated that, to the utter surprise of the complainants, the Opposite Parties sent final notice dated 29.05.2012 Annexure  C-29, intimating them (complainants) to pay the amount of Rs.2,12,500/-, within 30 days, failing which, it was made clear to them that the Plot Buyer's Agreement dated 30.11.2011 Annexure C-20, would be terminated, without any further notice. It was further stated that, left with no alternative, the complainants paid the amount of Rs.2,12,500/-, to the Opposite Parties, vide receipt dated 31.05.2012 Annexure  C-30. As such, by 31.05.2012, the complainants had already made the payment of Rs.50,21,500/- i.e. more than 95% of the sale consideration, in respect of the said unit.  
8.       It was further stated that, thereafter, the complainants waited patiently for delivery of possession of the unit, in question. It was further stated that, however, by the stipulated date i.e. 29.05.2013, the possession of plot no.104-EP-18-250 was not even offered to the complainants, despite the fact that by 31.05.2012 they had already made the payment of Rs.50,21,500/- i.e. more than 95% of the sale consideration. It was further stated that, thereafter, as and when the complainants approached the site and Chandigarh Offices of the Opposite Parties, with a request to give exact date of completion of development work and delivery of possession of plot no.104-EP-18-250, they put off the matter, on one pretext or the other.
9.       It was further stated that even necessary approvals/permissions/sanctions had not been obtained by the Opposite Parties, from the Competent Authorities. It was further stated that the complainants approached the Opposite Parties, a number of times, with a request to deliver possession of the unit, in question, to them, but they failed to do so.
10.       It was further stated that the Opposite Parties collected the huge amount, towards part price of the plot, in question, by making a false promise, that possession of the same would be given to the complainants, within a maximum period of 18 months, from the date of signing the Plot Buyer's Agreement dated 30.11.2011 Annexure C-20, but they did not abide by their commitment. Ultimately, the complainants asked for refund of the amount deposited, but to no avail.
11.       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.50,21,500/-, deposited by them, towards part price of plot no.104-EP-18-250, alongwith interest @ 18% P.A., from the respective dates of deposits till realization; pay compensation in the sum of Rs.5 lacs, for deficiency in rendering service, adoption of unfair trade practice, mental agony, physical harassment and financial loss; and cost of litigation to the tune of Rs.50,000/-
12.       The Opposite Parties were served, and put in appearance, on 22.04.2015. They filed their written version, on 02.06.2015. In their written version, the Opposite Parties, pleaded that since the complainants are the owners of the house, address whereof had been mentioned, in the head note of the consumer complaint,  and also they mentioned in the letter dated 12.12.2011, that they had to raise amount for paying the cost of plot, in question, after sale of other properties, as such, they did not fall within the definition of  consumers, as defined under Section 2 (1) (d) of the Act, meaning thereby that they had purchased plot no.104-EP-18-250, 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 this Commission had got no territorial and pecuniary Jurisdiction, to entertain and decide the complaint. It was further pleaded that since the complainants were the subsequent purchasers of the plot, in question, i.e. from the secondary market, as such, the consumer complaint was not maintainable. It was further pleaded that since plot no.104-EP-18-250 was cancelled vide letter dated 19.04.2012, Annexure R-14, 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 (19.04.2012), and, as such, the complaint having been filed on 06.04.2015, was palpably barred by time. It was further pleaded that since an arbitration Clause was incorporated, in the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20,  disputes, if any, between the parties, in respect of the unit, in question, could only be adjudicated upon, by the Arbitrator. It was further pleaded that time was never made the essence of contract. It was further pleaded that since the complainants sought enforcement of the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20, in respect of the immovable property, only a suit for specific performance was maintainable. It was admitted that the Opposite Parties transferred plot no.104-EP-18-250, in favour of the complainants, intimation whereof was given to them, vide letter dated 19.11.2010 Annexure  C-4. It was also admitted that as per the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20,   possession of plot no.104-EP-18-250, complete in all respects, was required be handed over to the complainants, within a maximum period of 18 months, from the date of execution thereof. It was also admitted that the total sale consideration of plot no.104-EP-18-250 was to the tune of Rs.52,34,000/-, as mentioned in the complaint. It was also not disputed that the complainants, in all, deposited the amount of Rs.50,21,500/-, towards part price of the said plot, which included Rs.3,08,755/-, as delayed payment interest. It was stated that since the complainants were defaulters, in making payment of installments, in respect of plot no.104-EP-18-250, as such, they were not entitled to any compensation/ penalty, for the period of delay only if the complainants were not defaulters in making payment. It was further stated that, in case of delay of delivery of possession of the plot, as per the terms and conditions of the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20, the Opposite Parties were to pay compensation/penalty for the period of delay. It was also admitted that the possession of plot no.104-EP-18-250, could not be delivered, to the complainants, till the date of filing the consumer complaint. It was further stated that possession of the plot, in question, could not be delivered to the complainants, for want of completion of basic amenities, at the site. 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 Plot Buyer's Agreement dated 30.11.2011, Annexure C-20,  which safeguarded their rights. It was further stated that, in case, the complainants sought refund of the amount, deposited by them, towards the said plot, they would lose considerable amount, on account of cancellation and forfeiture, as per Clause 2 (f) of the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20,. 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.
13.       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.
14.       The complainants submitted their joint affidavit, in support of the averments, contained in the complaint, by way of evidence, alongwith which, a number of documents were attached.
15.       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. 
16.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.   
17.       The first question, that falls for consideration, is, as to whether, the complainants fell within the definition of 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 are the owners of House No.414, Sector 04, Panchkula, Haryana, the address mentioned in the head-note of the complaint, and they also stated in the rejoinder filed by them, that they are not the sole owners of the same (House No.414) as also they mentioned in the letter dated 12.12.2011, that they had to raise amount for paying the cost of plot, in question, after sale of other properties, which meant that they had purchased the same (plot, in question), for commercial purpose, i.e. to resell 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. It may be stated here that there is no documentary evidence, on the record, that the complainants are the exclusive owners of House No.414, Sector 04, Panchkula, Haryana. Since, the Opposite Parties pleaded in the written version that the complainants were owners of house bearing No.414, Sector 04, Panchkula, Haryana, it was for them, to produce on record, copy of the title deeds of this house, or of other residential properties, if any, to show as to whether, they (complainants) were the exclusive owners thereof, or not. The Opposite Parties failed to adduce any documentary evidence, in that regard. Otherwise also, the complainants might be having agricultural or commercial property, and they had the right to sell the same, in order to pay the amount of installments, towards the plot, in question, to  retain the same (plot). Thus, in the absence of any documentary evidence, having been produced by the Opposite Parties,  showing that the complainants were the exclusive owners of House No.414, Sector 04, Panchkula, Haryana or any other residential properties, the objection taken by them, has no legs to stand. 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. Under these circumstances, by no stretch of imagination, it could be said that the plot, in question, was purchased by the  complainants, in the manner, referred to above, by way of investment, with a view to earn huge profits. The complainants, thus, fell 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.
18.       The  next   question,  that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. No doubt, it was submitted by the Counsel for the Opposite Parties, that since plot no.104-EP-18-250 was cancelled vide letter dated 19.04.2012, Annexure R-14, 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 (19.04.2012), and, as such, the complaint having been filed on 06.04.2015, was palpably barred by time. In the first instance, it may be stated here, that the complainants have denied the receipt of letter dated 19.04.2012, Annexure R-14.  On the other hand, there is nothing, on record, as to by which mode, the letter dated 19.04.2012, Annexure R-14, was allegedly sent to the complainants. No receipt duly signed by the complainants, in token of having received the letter dated 19.04.2012, Annexure R-14, was produced by the Opposite Parties. Thus, it was not proved that letter dated 19.04.2012, Annexure R-14, was ever received by the complainants. On the other hand, as stated above, the receipt of letter dated 19.04.2012, Annexure R-14, was specifically denied by the complainants. According to Clause 38 of the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20,  all notices, referred to therein (Agreement), were required to be, in writing, and deemed to be properly given and served upon the party(s), if sent either by registered A.D. or speed A.D., on his/her respective address.  Cancellation letter dated 19.04.2012, Annexure R-14, was not sent through registered A.D. or speed A.D. Under these circumstances, this letter was allegedly sent in contravention of the provisions of Clause 38, referred to above. Since the letter dated 19.04.2012, Annexure R-14, was not received by the complainants, the question of accrual of cause of action, in favour of the latter, from 19.04.2012, did not at all arise. Even otherwise, if it is admitted for the sake of arguments, that cancellation letter dated 19.04.2012, Annexure R-14, was sent to the complainants, it may be stated here that, perusal of the record shows that pursuant to the same (letter dated 19.04.2012, Annexure R-14), vide final notice dated 29.05.2012 Annexure C-29 (authenticity whereof has not been disputed by the Opposite Parties), the complainants were asked to make payment of Rs.2,12,500/-, within a period of 30 days, failing which, it was made clear to them (complainants), that the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20,  would be automatically terminated/cancelled, without any further notice. This final notice dated 29.05.2012 Annexure C-29, was sent by the Opposite Parties, pursuant to the alleged cancellation letter dated 19.04.2012, Annexure R-14. In pursuance of the said final notice dated 29.05.2012 Annexure C-29, the complainants deposited the amount of Rs.2,12,500/-, vide receipt dated 31.05.2012 Annexure C-30. It means that the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20,  did not stand cancelled/terminated, as the complainants fulfilled the condition, contained in the final notice dated 29.05.2012 Annexure C-29, by making payment of Rs.2,12,500/-, vide receipt dated 31.05.2012 Annexure C-30, to the Opposite Parties. On the other hand, as per Clause 8 of the Buyer's Agreement dated 30.11.2011 Annexure  C-20, the Opposite Parties were liable to deliver the possession of plot bearing no.104-EP-18-250, to the complainants, within the maximum period of 18 months, from the date of execution of the same (Agreement). Thus the Opposite Parties were required to deliver the possession of plot bearing no.104-EP-18-250, to the complainants, on or before 29.05.2013.  The Opposite Parties, frankly admitted in paragraph Nos.13, 15 and 19 of their written version, that possession of the plot, in question, could not be handed over to the complainants, for want of basic amenities. Thus, neither possession of the plot, in question, allotted in favour of the complainants, in the manner, referred to above, was offered, nor delivered to them (complainants), by the stipulated date, nor till the date of filing the complaint nor the penalty, as provided in the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20, was paid to them, nor in the alternative the refund of the amount deposited by them, was made to them. There was, thus, a continuing cause of action, in favour of the complainants. 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.
19.       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 them. In the instant case, the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20, in respect of the plot in question, was executed, between the parties, at Chandigarh, as is evident from page 53 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.
20.       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 basic price of the plot, in question, was  Rs.52,34,000/-. The complainants have sought refund of the amount of Rs.50,21,500/-, deposited by them, alongwith interest @18% P.A., from the respective dates of deposits; compensation to the tune of Rs.5 lacs, for deficiency in rendering service, unfair trade practice, financial loss, mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-. The aggregate amount of refund plus (+) compensation, and cost, claimed by the complainants, in the complaint, [excluding the interest claimed @18% P.A. aforesaid], came to be around Rs.55,71,500/- 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.
21.       The next question, that arises for consideration, is, as to whether, interest @18% 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”.

22.        The observations made, in the aforesaid case, are fully applicable, to the facts of the instant case. In the instant complaint, interest @18% 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.
23.       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 Plot Buyer's Agreement dated 30.11.2011, Annexure C-20.  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 Plot Buyer's Agreement dated 30.11.2011, Annexure C-20,  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.

24.       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 8 of the Plot Buyer's Agreement dated 30.11.2011 Annexure C-20, the Opposite Parties were liable to deliver the possession of plot bearing no.104-EP-18-250, to the complainants, within the maximum period of 18 months, from the date of execution of the same (Agreement), failing which they were liable to pay penalty @Rs.50/- per sq. yd, per month, for the period of delay. Thus, the Opposite Parties were required to deliver possession of plot no.104-EP-18-250, to the complainants, on or before 29.05.2013. The time was, thus, unequivocally made the essence of contract. The submission of the Counsel for the Opposite Parties,  thus, being devoid of merit, must fail, and the same stands rejected.
25.       It was next submitted by  the Counsel for the Opposite Parties,  that since the complainants being the subsequent purchasers, though with the approval of the Opposite Parties, sought enforcement of the  Plot Buyer's Agreement dated 30.11.2011, Annexure C-20,  in respect of the immoveable property,  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/transferred the same, in the manner, referred to above, for consideration. According to Clause 8 of the Buyer's Agreement dated 30.11.2011 Annexure  C-20, the Opposite Parties were liable to deliver the possession of plot bearing no.104-EP-18-250, to the complainants, within the maximum period of 18 months, from the date of execution of the same (Agreement), failing which they were liable to pay penalty @Rs.50/- per sq. yd, per month, for the period of delay. According to Clause 25 of the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20, 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”

26.       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.
27.       The next question, which arises for consideration, is, as to within which period, delivery of possession of plot no.104-EP-18-250, was to be given to the complainants. The Plot Buyer's Agreement, Annexure C-20, in respect of plot no.104-EP-18-250, was executed between the parties, on 30.11.2011. As stated above, as per Clause 8 of the Plot Buyer's Agreement dated 30.11.2011 Annexure  C-20, the Opposite Parties were liable to deliver the possession of plot bearing no.104-EP-18-250, to the complainants, within the maximum period of 18 months, from the date of execution of the same (Agreement), i.e. on or before 29.05.2013. Admittedly, the possession of plot bearing no.104-EP-18-250, was not delivered to the complainants, by the stipulated date, or even by the time, the complaint was filed. The Counsel for the Opposite Parties, frankly admitted in paragraph Nos.13, 15 and 19 of their written version, that possession of the plot, in question, could not be handed over to the complainants, for want of basic amenities.  On the other hand, more than 95% of the sale consideration, towards the said plot, has been paid by the complainants, but   possession of the same, was not delivered to them, as the same had not been developed.  Still the Opposite Parties have not given any exact date of delivery of possession of plot no.104-EP-18-250, to the complainants. Since, neither the possession of plot bearing no.104-EP-18-250, which was allotted to the complainants, in the manner, referred to above, was offered to them (complainants) by the stipulated date nor by the time, the complaint was filed, nor till date, they (complainants) were right, in seeking refund from the Opposite Parties. By making a misleading statement, that possession of the plot, in question, would be given to the complainants, within the maximum period of 18 months, from the date of execution of the Plot Buyer's Agreement dated 30.11.2011 Annexure C-20 i.e. on or before 29.05.2013 and by not abiding by the commitment, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.
28.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to the refund of amount of Rs.50,21,500/-, deposited by them, as is evident from the statement of account Annexure R-16, placed on record by the Opposite Parties, towards the part price of plot no.104-EP-18-250. As stated above, the Opposite Parties, failed to deliver possession of plot no.104-EP-18-250, allotted in favour of the complainants, in the manner, referred to above, by the stipulated date or even till date. The Opposite Parties, therefore, had no right, to retain the hard earned money of the complainants, in the sum of Rs.50,21,500/-, deposited towards the part price of plot bearing no.104-EP-18-250, without rendering them any service. Under these circumstances, the complainants were left with no alternative, than to ask for the refund of sale consideration paid by them. In our considered opinion, the complainants are entitled to the refund of amount of Rs.50,21,500/-, deposited by them, towards the part price of plot, in question. By not refunding the amount, aforesaid, deposited by the complainants, the Opposite Parties were deficient, in rendering service.
29.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount deposited by them, if so, at what rate. The amount of Rs.50,21,500/-,  towards the part price of plot no.104-EP-18-250, was deposited by the complainants. The complainants were deprived of their hard earned money, to the tune of Rs.50,21,500/-on the basis of misleading information, given by the Opposite Parties, that they would be handed over legal physical possession of plot no.104-EP-18-250, on or before 29.05.2013, 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 no.104-EP-18-250, 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 instalment(s), the Opposite Parties had been charging compound interest @24% P.A., from the complainants, as per Clause 3 of the Plot Buyer's Agreement dated 30.11.2011, Annexure C-20. It is, therefore, held that the Opposite Parties, by neither delivering possession of plot no.104-EP-18-250, by the stipulated date, nor refunding the amount to the complainants with interest, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainants, are, thus, entitled to the refund of Rs.50,21,500/-, alongwith interest @12% P.A., from the respective dates of deposits.
30.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, on account of deficiency in service, indulgence into unfair trade practice, as also mental agony and physical harassment caused to them, at the hands of the Opposite Parties or not. 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 the 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, after making payment of Rs.50,21,500/-, i.e. more than 95%, towards the price of plot no.104-EP-18-250, no progress was made by the Opposite Parties, at the site, by the stipulated date. The complainants had purchased the said plot, to have a roof over their head, by constructing a house thereon, but their hopes were dashed to the ground, when possession of the same was not even offered to them, after about more than three and a half years of the allotment thereof, what to speak of delivery thereof. The complainants, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. The complainants, are, thus, entitled to compensation, to the tune of Rs.2 lacs, on account of this reason.
31.       The Counsel for the Opposite Parties, however, submitted that since the parties are governed by the terms and conditions of Plot Buyer's Agreement dated 30.11.2011, Annexure C-20,  in case, the complainants sought refund of the amount, deposited by them, towards the price of the said plot, they would lose considerable amount, on account of cancellation and forfeiture, as per Clause 2 (f) of the same (Agreement). The submission of the Counsel for the Opposite Parties, in this regard, does not appear to be correct. It may be stated here, that in the instant case, the Opposite Parties failed to produce, on record, any document to establish that they were in a position to deliver possession of the unit, to the complainants, by the stipulated date. Not only this, on the other hand, as stated above, it has been frankly admitted by the Opposite Parties, in paragraph Nos.13, 15 and 19 of their written version, that possession of the plot, in question, could not be handed over to the complainants, for want of basic amenities. It is not the case of the Opposite Parties that they had offered possession of the plot, in question, complete in all respects, to the complainants, before filing the complaint, but they failed to take the same or rescinded the contract. Had the Opposite Parties offered possession of plot no.104-EP-18-250, to the complainants, before filing the consumer complaint, and had they (complainants) refused to take the same, or rescinded the contract, the matter would have been different. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
32.       No other point, was urged, by the Counsel for the parties.
33.       For the reasons recorded above, the complaint is partly accepted, with costs, and the Opposite Parties are jointly and severally directed as under:-
    1. To refund the amount of  Rs.50,21,500/-, to the complainants, alongwith interest @ 12% per annum, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order.
    2. To pay compensation, in the sum of Rs.2 lacs, for deficiency in rendering service, unfair trade practice and causing mental agony and physical harassment, to the complainants, 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, 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 costs, to the tune of Rs.20,000/-.
34.          Certified Copies of this order be sent to the parties, free of charge.
35.       The file be consigned to Record Room, after completion.

Pronounced.

08.06.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

      MEMBER

 

Rg.