Chandigarh

StateCommission

CC/48/2015

Ms. Baljeet Kaur Teja - Complainant(s)

Versus

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

Sandeep Bhardwaj, Adv.

29 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	48 of 2015
Date of Institution	:	12.03.2015
Date of Decision	:	29.05.2015

 

Ms.Baljeet Kaur Teja wife of Sh. Gurmit Singh Teja, resident of C-53, Opposite Ranbaxy, Phase-III, Industrial Area, Mohali, Punjab.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Limited, Registered Office, ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through its General Manager/Authorized Representative.
2. M/s Emaar MGF Land Limited, Branch Office S.C.O. 120-122, 1^st Floor, Sector 17-C, Chandigarh, through its Authorized Representative.

              ....  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 complainant.

                   Sh.Ashim Aggarwal, Advocate for the Opposite Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that on the assurance given by the representative of the Opposite Parties, that the development activity, at the site was in full swing, and near completion, and on booking the plot, in the said project, possession thereof, complete in all respects, would be handed over to the purchasers/ investors, within a period of 3 years, from the date of execution of the Plot Buyer's Agreement, the complainant, applied to them, vide application No.2065, for the allotment of a residential plot, measuring 300 square yards, in their proposed township, and paid a sum of Rs.10,35,000/-, as booking amount. It was stated that the proposed lay out plans, including other permissions, in respect of the said project, were not shown to the  complainant, on the pretext that the same would be sent alongwith the allotment letter.

2.       The   complainant was allotted plot no.508, approximately measuring 300 square yards, in Augusta Greens, Sector 109, Mohali Hills, Mohali, @ Rs.11,500/- per square yard, vide provisional allotment letter dated 15.05.2007 Annexure C-1. The basic price of the said plot was to the tune of Rs.34,50,000/-. Apart from this amount, the   complainant was also required to pay External Development Charges and Preferential Location Charges. However, the proposed lay-out plans, including other permissions, in respect of the said project, were not sent alongwith the allotment letter, despite assurance given by the Opposite Parties.
3.       It was further stated that, in the meanwhile, the Opposite Parties informed the complainant that they were not in a position to hand over possession of plot no.508, approximately measuring 300 square yards, in Augusta Greens, Sector 109, Mohali Hills, Mohali. The complainant was offered relocation of plot, by the Opposite Parties. It was further stated that, as such, the complainant was relocated to plot No.222, approximately measuring 300 square yards, in Augusta Greens, Sector 109, Mohali Hills, Mohali, in lieu of plot No.508. Revised allotment letter dated 27.09.2007 Annexure C-2, in respect of plot No.222, approximately measuring 300 square yards, in Augusta Greens, Sector 109, Mohali Hills, Mohali, was issued in favour of the complainant. As per the revised allotment letter dated 27.09.2007 Annexure C-2, the basic price of the said plot was to the tune of Rs.34,50,000/-. Apart from this amount, the   complainant was also required to pay a sum of Rs.1,69,104/- towards External Development Charges and Rs.4,31,250/- towards Preferential Location Charges. Thus, the total price, in the sum of Rs.40,50,354/-, was required to be paid, by the  complainant, towards the said plot. 
4.       It was further stated that the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3, in respect of plot No.222, approximately measuring 300 square yards, in Augusta Greens, Sector 109, Mohali Hills, Mohali (hereinafter to be referred as plot No.222 only), was executed between the parties, at Chandigarh. Thereafter, as per the installment payment plan, the  complainant, in all, deposited an amount of Rs.38,77,854/-, as is evident from the statement of account Annexure OP/4 at page 90 of the file, towards part price of the said plot. 
5.       It was further stated that according to Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3, the Opposite Parties were to hand over physical possession of the residential plot, in favour of the complainant, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement). It was further stated that it was also mentioned in Clause 8 of the said Agreement, that, in case, the Opposite Parties, failed to deliver possession of the plot, in question, within the stipulated period, they were liable to pay penalty/compensation, to the allottee, @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay. Thus, the Opposite Parties were to deliver possession of the residential plot, to the allottee, latest by 03.07.2010. The possession was not offered to the complainant by 03.07.2010.
6.       It was further stated that shockingly, vide letter dated 05.12.2011 Annexure C-6, again the Opposite Parties informed the complainant that they were not in a position to hand over possession of relocated plot no.222. As such, the complainant was again offered relocation of plot, by the Opposite Parties. It was further stated that, as such, the complainant was for the second time, relocated to plot No.281, approximately measuring 300 square yards, in Augusta Greens, Sector 109, Mohali Hills, Mohali. The Opposite Parties informed the complainant that the possession of plot No.281 would be delivered after sometime.
7.       It was further stated that, thereafter, the complainant approached the Opposite Parties, a number of times, with a request to deliver possession of plot No.281, to her, but they failed to give any positive reply. It was further stated that left with no alternative the complainant vide detailed letter dated 05.09.2014 Annexure C-7, requested the Opposite Parties, to apprise her regarding the status of development, but to no avail. It was further stated that, not only this, by 2015, even necessary approvals/permissions had not been obtained by the Opposite Parties, from the Competent Authorities, in respect of the project, in question.
8.       It was further stated that the Opposite Parties collected the huge amount, towards the price of plot, in question, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 3 years, from 04.07.2007, but they did not abide by their commitment. It was further stated that, as such, the amount of Rs.38,77,854/-, deposited by the  complainant, in the manner, referred to above, towards the part price of plot, was utilized by the Opposite Parties, as a result whereof, she was caused huge financial loss.
9.       It was further stated that since the Opposite Parties had not offered physical possession of the plot, in question, complete in all respects, in favour of the complainant, she was not able to construct house thereon, and reside therein. It was further stated that thus, the complainant underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot, to her, and also suffered further financial loss, on account of non-payment of compensation. It was further stated that neither possession of the plot, in question was offered, nor delivered, nor penalty/ compensation, as stipulated in the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3, was paid, nor in the alternative, the amount deposited, towards part price of the said plot was refunded.
10.       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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to withdraw the illegal demand/ charges, if any, in respect of the unit, in question; refund the amount of Rs.38,77,854/-, alongwith interest @24% P.A., from the dates of respective deposits, till realization; pay penalty/ compensation, @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay; compensation to the tune of Rs.5 lacs, on account of financial loss, mental agony and physical harassment; and  cost of litigation, to the tune of Rs.50,000/-.
11.       The Opposite Parties were served, and put in appearance, on 17.04.2015. They filed their written version, on 21.05.2015. In their written version, the Opposite Parties, pleaded that since the husband of the complainant Mr.Gurmit Singh, had also purchased one residential plot bearing No.105-CP-130-300, in their project, for which he had filed a separate consumer complaint bearing No.49 of 2015, and also she (complainant) had purchased the plot, in question, as such, she (complainant) did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act, meaning thereby that she (complainant) had purchased the same (unit), with an intention to earn profits, after selling the same, as and when there was escalation in the prices of real estate. It was further pleaded that since possession of the unit, in question, was to be delivered by 03.07.2010, cause of action, for the first time to file the consumer complaint, accrued to the complainant, within a period of two years, from that date (03.07.2010), and, as such, the complaint having been filed on 12.03.2015, was palpably barred by time. It was further pleaded that since an arbitration Clause was incorporated, in the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3,  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 the complaint was bad for non-joinder of LIC Housing Finance Limited, as necessary party, from which the complainant had obtained loan, in respect of payment of instalments of the plot, in question. It was stated that the complainant failed to prove that she had deposited the amount of Rs.38,77,854/-, towards part price of the said unit. 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 04.07.2007, Annexure C-3, the Opposite Parties were to pay compensation/penalty for the period of delay. It was further stated that since it was only proposed that the Opposite Parties were to complete the construction, within 36 months, from the date of execution of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3, as such, time was not the essence of contract. It was admitted that initially the complainant was allotted plot no.508, approximately measuring 300 square yards, in Augusta Greens, Sector 109, Mohali Hills, Mohali, vide allotment letter dated 15.05.2007, and, thereafter, she was relocated twice firstly to plot No.222, and secondly to plot No.281. It was further stated that it was only, on the request, having been made by the complainant, that she was relocated twice, in the manner, referred to above. It was also admitted that the possession of relocated plot No.281, could not be delivered, to the complainant, 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 complainant, for want of completion of basic amenities, at the site. It was further stated that the Opposite Parties were expediting the work, in the said project where the plot, in question, was allotted to the complainant and possession thereof, was expected to be delivered by the end of June 2015. It was further stated that it was well within the knowledge of the complainant that for any delays, stipulated penalty had been provided in the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3, which safeguarded her rights. It was further stated that, in case, the complainant sought refund of the amount, deposited by her, towards the said plot, she would lose considerable amount, on account of cancellation and forfeiture, as per Clause 2 (f) of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3. 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.
12.       In the rejoinder filed by the complainant, she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
13.       The complainant submitted her affidavit, in support of the averments, contained in the complaint, by way of evidence, alongwith which, a number of documents were attached.
14.       The Opposite Parties, in support of their case, submitted the affidavit of Mr.Sachin Kapoor, their Senior Manager (Legal) and Authorized Representative, by way of evidence, alongwith which, a number of documents were attached. 
15.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.   
16.       The first question, that falls for consideration, is, as to whether, the  complainant fell within the definition of a consumer, 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 husband of the complainant-Mr.Gurmit Singh Teja, had also purchased one residential plot bearing No.105-CP-130-300, in their project, for which he had filed a separate consumer complaint bearing No.49 of 2015, before this Commission and also she (complainant) had purchased the plot, in question, which meant that the husband and wife had purchased two units separately, 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, infact, the complainant booked only one residential plot, in the project of the Opposite Parties. Whereas, on the other hand,   Mr.Gurmit Singh Teja, husband of the complainant, in his own name, also booked one residential plot, in the project of the Opposite Parties.  It was not the case of the Opposite Parties, that both the residential plots, aforesaid, were booked by the complainant and her husband-Mr.Gurmit Singh Teja, in their joint names. It may be stated here, that the husband and wife, are separate legal entities. If, the complainant booked one residential plot, in her name, and Mr.Gurmit Singh Teja, being her (complainant) husband, also booked one plot, separately, that did not mean that she (complainant) did not fall within the definition of a consumer. The parents always make endeavour to settle their children, in a proper manner, by constructing houses for them. It was not that a number of units, were booked by the complainant, in her individual capacity. As stated above, the complainant only purchased the unit, in question, in her name. There is no reliable evidence, on the record, that the complainant has a number of other residential units and houses or commercial plots. Even no evidence, was produced by the Opposite Parties, that the complainant is the property dealer, 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  complainant, in the manner, referred to above, by way of investment, with a view to earn huge profits. The complainant, thus, fell within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in its written statement, therefore, being devoid of merit, is rejected.
17.       The  next  question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. No doubt, it was submitted by the Counsel for the Opposite Parties, that since the Plot Buyer's Agreement Annexure C-3, in respect of unit, in question, was executed on 04.07.2007 and the possession thereof, was to be handed over by 03.07.2010, the cause of action accrued to her on that date (03.07.2010) and the complaint having been filed on 12.03.2015, was palpably barred by time. It may be stated here that, according to the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3, the Opposite Parties were to hand over physical possession of the plot, in favour of the complainant, within a period of two years, but not later than three years, from the date of execution thereof (Agreement).  The Opposite Parties, frankly admitted in paragraph Nos.10, 11 and 12 of their written version, that possession of the plot, in question, could not be handed over to the complainant, for want of basic amenities and the same was expected to be delivered by June 2015. Thus, neither possession of the plot, in question, allotted in favour of the complainant, in the manner, referred to above, was offered, nor delivered to the complainant, by the stipulated date, nor till the date of filing the complaint nor the penalty, as provided in the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3, was paid to her, nor in the alternative the refund of the amount of Rs.38,77,854/-, deposited by her, as is evident from the statement of account Annexure OP/4, placed on record by the Opposite Parties, was made to her. There was, thus, a continuing cause of action, in favour of the complainant. 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.
18.       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 04.07.2007, 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 Plot Buyer's Agreement dated 04.07.2007, 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 the Opposite Parties, being devoid of merit, must fail, and the same stands rejected

19.       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 04.07.2007, Annexure C-3, the Opposite Parties were to hand over physical possession of the residential plot, in favour of the  complainant, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement). It was further mentioned in Clause 8 of the said Agreement, that, in case, the Opposite Parties, failed to deliver possession of the plot, in question, within the stipulated period, they were liable to pay penalty/compensation, to the allottee, @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay. Thus, the Opposite Parties were to deliver possession of the plot, in question, to the  complainant, latest by 03.07.2010. 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.
20.       The next question, which arises for consideration, is, as to within which period, delivery of possession of the plot, in question, was to be given to the complainant. The Plot Buyer's Agreement, Annexure C-3, in respect of plot no.508, approximately measuring 300 square yards, in Augusta Greens, Sector 109, Mohali Hills, Mohali, was executed between the parties, on 04.07.2007. Later on, on account of non-completion of the basic amenities at the site, the complainant was relocated twice and was finally allotted plot No.281, approximately measuring 300 square yards, in Augusta Greens, Sector 109, Mohali Hills, Mohali. According to Clause 8 of this Agreement, subject to force majeure conditions, and reasons, beyond the control of the Company, it was to deliver physical possession of the plot, within a period of two years, but not later than three years, from the date of execution of the same (Agreement). It is, thus, evident from this Clause, that the Opposite Parties, were required to deliver possession of the plot, in question, allotted, in favour of the complainant, in the manner, referred to above,  within three years, from the date of execution of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3. Admittedly, possession of the plot, in question, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed. The Counsel for the Opposite Parties, frankly admitted in paragraph Nos.10, 11 and 12 of their written version, that possession of the plot, in question, could not be handed over to the complainant, for want of basic amenities and the same was expected to be delivered by June 2015.  On the other hand, more than 95% of the sale consideration, towards the said plot, has been paid by the complainant, but   possession of the same, was not delivered to her, as the same had not been developed.  Still the Opposite Parties have not given any exact date of delivery of possession of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, to the complainant. Though, the Opposite Parties have claimed in their written version, that possession of the plot, in question, was expected to be delivered by June, 2015, yet, in our considered opinion, it did not appear that the same is possible, as it is evident from the information obtained by the complainant, under the Right to Information Act, 2005, from the Government of Punjab, Forest Department, vide letter dated 05.05.2015, at page 68 of the file, that all the entry points of the project, in question, had been closed/sealed, as they (Opposite Parties) had failed to take necessary approvals from the Government of India, under Forest Conservation Act. Since, neither possession of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, which was allotted to the complainant, in the manner, referred to above, was offered to her (complainant) by the stipulated date nor by the time, the complaint was filed, nor till date, she (complainant) was 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 complainant, within the maximum period of three years, from the date of execution of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3, 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.
21.       No doubt, the Counsel for the Opposite Parties, placed reliance on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, a case decided by the Hon’ble Supreme Court  to contend that time was not the essence of contract. The facts of  Smt. Chand Rani's case (supra), are distinguishable, from the facts of the instant case. Smt. Chand Rani's case (supra), related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms in the Agreement. It was, under these circumstances, held, in the said case, that time was not the essence of contract. Whereas, in the instant case, as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3, the Opposite Parties were to hand over physical possession of the residential plot, in favour of the  complainant, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement) i.e. latest by 03.07.2010. Even after the expiry of more than about seven years, from the date of date of allotment of the plot, and subsequent relocation thereof, twice, and more than about four and a half years, from the stipulated date, the possession thereof, was not delivered to the complainant. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Counsel for the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
22.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of amount of Rs.38,77,854/-, deposited by her, as is evident from the statement of account Annexure OP/4, placed on record by the Opposite Parties, towards the part price of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab. As stated above, the Opposite Parties, failed to deliver possession of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, allotted in favour of the complainant, 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 complainant, in the sum of Rs.38,77,854/-, deposited towards the part price of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, without rendering her any service. Under these circumstances, the complainant was left with no alternative, than to ask for the refund of sale consideration paid by her. In our considered opinion, the complainant is entitled to the refund of amount of Rs.38,77,854/-, deposited by her, towards the part price of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab. By not refunding the amount, aforesaid, deposited by the complainant, the Opposite Parties were deficient, in rendering service.
23.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by her, if so, at what rate. The amount of Rs.38,77,854/-,  towards the part price of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, was deposited by the complainant. The complainant was deprived of her hard earned money, to the tune of Rs.38,77,854/-, on the basis of misleading information, given by the Opposite Parties, that she would be handed over legal physical possession of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, on or before 03.07.2010, but they failed to do so. The complainant was, thus, caused financial loss.  Hard earned money, deposited by the complainant, towards the part price of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainant, in some bank, or had she invested the same, in some business, she would have earned handsome returns thereon. In case of delay, in deposit of instalment(s), the Opposite Parties had been charging compound interest @15% P.A., from the complainant, as per Clause 3 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3. It is, therefore, held that the Opposite Parties, by neither delivering possession of the relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, by the stipulated date, nor refunding the amount to the complainant with interest, was not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant, is, thus, entitled to the refund of Rs.38,77,854/-, alongwith interest @12% P.A., from the respective dates of deposits.
24.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, on account of mental agony and physical harassment or not. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the  complainant. 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  complainant. 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.38,77,854/-, i.e. more than 95%, towards the price of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, no progress was made by the Opposite Parties, at the site, by the stipulated date. The complainant had purchased the said plot, to have a roof over her head, by constructing a house thereon, but her hopes were dashed to the ground, when possession of the same was not even offered to her, after about 7 years of the allotment thereof, what to speak of delivery thereof. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. The complainant, is, thus, entitled to compensation, to the tune of Rs.1,50,000/-, on account of this reason.
25.       The Counsel for the  complainant, submitted that the  complainant, besides refund of the amount, aforesaid, deposited by her, alongwith interest and compensation, were also entitled to penalty/ compensation to the allottee, @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay, as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-3. This submission of the Counsel for the  complainant, does not appear to be correct. Such a submission of the Counsel for the  complainant, would have been considered to be correct, had the possession of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, been sought by her and ordered by this Commission, to be delivered to her (complainant).  In the instant case, since it has been held that the complainant is entitled to the refund of amount deposited by her, alongwith interest and compensation, no such direction regarding payment of penalty/compensation, aforesaid, could be given. The  complainant, in our considered opinion, as stated above, is only entitled to the refund of amount, aforesaid, alongwith interest @12% P.A., which (interest) would take care of the financial loss, suffered by her. The submission of the Counsel for the complainant, in this regard, thus, being devoid of merit is rejected.
26.       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 04.07.2007, Annexure C-3, in case, the complainant sought refund of the amount, deposited by her, towards the said plot, she 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 position to deliver possession of the unit, to the complainant, 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.10, 11 and 12 of their written version, that the possession of plot, in question, could not be handed over to the complainant, for want of basic amenities and the same was expected to be delivered by June 2015. Not only this, as stated above, from the information obtained by the complainant, under the Right to Information Act, 2005, from the Government of Punjab, Forest Department, vide letter dated 05.05.2015 at page 68 of the file, it is evident that all the entry points of the project, in question, had been closed/sealed, as the Opposite Parties had failed to take necessary approvals from the Government of India. 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 complainant, before filing the complaint, but she failed to take the same or rescinded the contract. Had the Opposite Parties offered possession of relocated plot no.281, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, to the complainant, before filing the consumer complaint, and had she (complainant) 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.
27.       No other point, was urged, by the Counsel for the parties.
28.       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.38,77,854/-, to the complainant, 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.1.50 lacs, for causing mental agony and physical harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
    3.  To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
    4. LIC Housing Finance Limited, shall have the first charge on the amount ordered to be refunded, in favour of the  complainant, to the extent it (amount) was found due to it against her (complainant).
    5. 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/-.
29.            Certified Copies of this order be sent to the parties, free of charge.
30.       The file be consigned to Record Room, after completion

Pronounced.

May 29, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

      MEMBER

 

Rg.