Chandigarh

StateCommission

CC/188/2016

Ms. Remy Kakkar - Complainant(s)

Versus

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

Sandeep Bhardwaj, Adv.

12 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	188 of 2016
Date of Institution	:	04.05.2016
Date of Decision	:	12.09.2016

 

1. Ms. Remy Kakkar wife of Capt. Naresh Kumar Kakkar aged 52 years.
2. Capt. Naresh Kumar Kakkar son of Late Sh. Rajendra Prakash, aged 55 years.

Correspondence Address :-

Tenants at House No.1169, Sector 51-B, Aryan Enclave, UT, Chandigarh.

……Complainants

V e r s u s

1.      M/s Emaar MGF Land Ltd., Corporate Office at ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director/ Director/ Authorized Signatory

2.      M/s Emaar MGF Land Limited,, SCO No.120-122,, 1^st Floor, Sector 17-C, Chandigarh – 160017, through its Managing Director/Director/ Authorized Signatory.  

 

.... Opposite Parties No.1 and 2.

3. HDFC Limited SCO No.153-155, Sector 8C, Madhya Marg, Chandigarh,  through its Branch Manager.

 

….Performa Opposite Party No.3

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

Sh.  Sandeep Bhardwaj, Advocate for the complainants.

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

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

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainants in the year 2010 decided to purchase a residential flat consisting of at least four bedrooms, wherein, they could adjust easily, as per the family needs. On being lured by the assurances given by Opposite Parties No.1 and 2, the complainants applied for allotment of residential unit vide application dated 12.08.2010 and paid the booking amount of Rs.10 lacs. The said unit was booked by the complainants under subvention scheme. Subsequently, the complainants were allotted residential unit No. TVM-G3-FPH-PH03 in the project namely “The Views” in Sector 105, Mohali Hills, SAS Nagar, District Mohali, Punjab vide provisional allotment letter dated 23.08.2010 (Annexure C-1). The entire sale consideration of the unit was fixed at Rs.99,15,199/-. Thereafter, Buyer’s Agreement (Annexure C-2) was executed between the parties in September, 2010. It was stated that the complainants also took loan from Opposite Party No.3 for the unit, in question, as such, Tripartite Agreement (Annexure C-8) was executed between the parties.  It was further stated that as per Clause 21.1 of the Agreement, Opposite Parties No.1 and 2 were liable to hand over possession within a maximum period of 36 months from the date of allotment (23.08.2010) i.e. on or before 22.08.2013. Further, Opposite Parties No.1 and 2 also entitled to get extension of further period of 90 days only for applying and obtaining occupation certificate in respect of the Group Housing Complex. In the meantime, Opposite Parties No.1 and 2 requested the complainants to get the payment plan changed from subvention plan to installment payment plan and, as such, all the documents were got re-signed. To the utter surprise of the complainants, Opposite Parties No.1 and 2 vide statement of account (Annexure C-11) levied delayed payment interest to the tune of Rs.1,82,422/-, which was protested by them (complainants) vide emails and reminders (Annexures C-12 to C-15). Ultimately, Opposite Parties No.1 and 2 vide email (Annexure C-16) informed that the charging of delayed payment interest is being looked into and would be solved by the end of April, 2011. Thereafter, the complainants visited the site and found that the construction of the unit had been put to halt and even basic amenities were not in existence, despite receipt of 90% of the amount from the complainants. It was further stated that Opposite Parties No.1 and 2 informed vide email (Annexure C-21) to the complainants that work is being expedited to handover the unit in the middle of year, 2012 but they failed to hand over the same till June, 2012. It was further stated that another demand of Rs.2,80,085/- was made by Opposite Parties No.1 and 2, which was duly paid vide cheque dated 13.08.2012. It was further stated that the complainants paid the total amount of Rs.91,77,665/- in respect of the unit, in question. The complainants again visited the site in April, 2014 but they were surprised to see that still the same was put to halt and even they (complainants) did not allow to meet with the senior officials of the Company. It was further stated that Opposite Parties No.1 and 2 vide email dated 27.10.2014 (Annexure C-24) waived off the interest. Even number of emails were exchanged between the complainants and Opposite Parties No.1 and 2 regarding handing over of possession but to no avail. It was further stated that relocation was also offered by the Company but the complainants refused to accept the same. Ultimately, vide email dated 01.03.2016 (Annexure C-32), Opposite Parties No.1 and 2 informed that they took all possible steps to expedite the delivery of possession of the unit and final finishing work is in progress, which is expected to be completed in April, 2016. It was further stated that when the complainants tried to visit the site to see the construction and development, they were not allowed to enter by a guard deputed there, as the entry points thereof was sealed/fenced. It was further stated that Opposite Parties No.1 and 2 not in a position to offer and deliver legal possession of the residential unit for want of complete construction, basic amenities and also necessary approvals/permissions from the competent authorities. It was further stated that the complainants came to know from the similar located allottees that the entry points were sealed/fenced by the Government of Punjab, Forest Department. The complainants have also placed on record certain RTI Information and letters to prove the fact regarding lack of approvals, basic amenities and sealed of the project. It was further stated that the aforesaid acts, on the part of Opposite Parties No.1 and 2, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.           Opposite Parties No.1 and 2, in their joint written version, have not taken objection regarding arbitration clause in the Agreement, although they 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 stated that this Commission has no pecuniary and territorial jurisdiction to entertain and try the complaint. It was further stated that the complaint is time barred as it has been filed more than 2 years after accrual of alleged cause of action. It was further stated that intimation of possession duly sent to the complainants in May, 2016 upon completion of all the amenities, as mentioned in the Agreement but they did not take possession for the reasons best known to them. It was further stated that all the terms and conditions were duly agreed by the complainants and they voluntarily executed the Agreement. It was further stated that as per Clause 21.1 of the Agreement, “company proposes to handover possession” and there was no definitive Agreement stating that possession would definitely be delivered within 36 months and the word “proposes” means to try/make effort. Further, the contract provided a penalty in the event of delay. It was further stated that it is well settled principle of law that in cases of sale of immovable property and construction, time was never regarded as the essence of the contract. It was further stated that the booking was made by the complainants under subvention payment scheme and the Company has already paid pre Emi interest on the amount disbursed. It was further stated that the Company has obtained Occupation Certificate (Exhibit OP/3) in August, 2014, which proved that construction was complete and unit was ready for occupation. It was further stated that the complainants were also asked to have a look at the site but they never visited the site. The relocation offer was only given on the request of the complainants.  It was further stated that vide letter dated 11.02.2010, GMADA granted permission to Opposite Parties No.1 and 2 for six approaches from Kharar-Banur-Tepla road in Village Raipur kalan to the project of Opposite Parties No.1 and 2 and relevant fee was deposited by them. It was further stated that the responsibility of obtaining all statutory permissions for development of the Kharar-Banur-Tepla road is of the state authorities. It was further stated that vide letter dated 15.04.2015, the Chief Administrator, GMADA was requested by the replying Opposite Parties to take up issue with Forest Department to provide connectivity to the integrated township. It was further stated that the Forest Department has sealed certain entry points but there is still adequate access to the unit of the complainants and stand of the complainants that all entry points are sealed is malafide and without any basis. It was further stated that the complainants from 2013 till April, 2016 were demanding possession and once it came to their knowledge that possession was going to be offered, they immediately filed the complaint seeking refund. It was further stated that if the complainants seek refund, then it would amount to cancellation of the Agreement and refund would be governed by the terms of Agreement. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.

3.           Opposite Party No.3, in its written statement, admitted that the complainants had availed of loan from it, for making payment towards the said unit. It was pleaded that, in case, this Commission, comes to the conclusion that the complainants are entitled to refund of the amount deposited, Opposite Party No.3 shall have first charge/right, to seek apportionment of its dues. It was stated that complaint qua Opposite Party No.3, is liable to be dismissed, as neither deficiency in rendering service and adoption of unfair practice has been proved against it, nor any allegation with regard to the same has been leveled by the complainants.

4.           The complainants, filed rejoinder to the written statement of Opposite Parties No.1 and 2, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.1 and 2. 

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

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

7.           Admittedly, penthouse No.TVM G3-FPH-PH03 in the project “The Views”, Mohali was allotted to the complainants vide provisional allotment letter dated 23.08.2010 (Annexure C-1) and Plot Buyer’s Agreement (Annexure C-2) was executed between the complainants and Opposite Parties No.1 and 2.  It is also the admitted fact that out of the total consideration of the amount of Rs.99,15,199/-, the complainants paid the total amount of Rs.91,77,665/-, as is evident from statement of account (Annexure C-33). It is also the admitted fact that letter of intimation of possession was sent to the complainants vide letter dated 21.05.2016 (Exhibit OP/4).

8.             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 Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by Opposite Parties No.1 and 2, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even 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 jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, 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.” 

            In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for Opposite Parties No.1 and 2, stands rejected.

9.           Another frivolous objection was taken by Opposite Parties No.1 and 2, by stating that this Commission has got no territorial jurisdiction to entertain and decide the complaint.

              According to Section 17 of the Act, a consumer complaint can 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 perusal of record reveals that provisional allotment letter dated 23.08.2010 (Annexure C-1), Scheme of payment – Subvention Scheme PLAN (Annexure C-3), Schedule of payment – Installment Plan (Annexure C-4), letter dated 25.10.2010 (Annexure C-9), letter dated 15.04.2015 (Annexure C-39), were sent by Chandigarh office of Opposite Parties No.1 and 2, as the same had the address “Emaar MGF Land Limited, SCO 120-122, 1^st Floor, Sector 17-C, Chandigarh-160017”. 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 Opposite Parties No.1 and 2, also stands rejected.

10.          Another objection taken by Opposite Parties No.1 and 2, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainants have sought refund of an amount of Rs.91,77,665/- paid by them, towards price of the residential unit alongwith appropriate interest from the respective dates of deposits, till realization;  compensation to the tune of Rs.5 lacs, for mental agony & physical harassment; and cost of litigation, to the tune of Rs.1,00,000/-, aggregate value whereof [excluding the interest claimed] fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

                As far as the interest claimed by the complainants, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by Opposite Parties No.1 and 2, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

11.           The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was barred by time or not. Opposite Parties No.1 and 2 stated in their written statement, that the complaint is time barred, having been filed beyond two years of alleged cause of action. After going through the record of the case, we are not impressed with the contention of Opposite Parties No.1 and 2. No doubt, the complaint filed by the complainants on 04.05.2016. Even a number of emails were written by the complainants to Opposite Parties No.1 and 2 regarding possession of the unit, but no positive result came out. It may be stated here that till the date of filing the complaint i.e. 04.05.2016, neither possession of the unit was offered, nor delivered to the complainants, complete in all respects, after receipt of the huge amount from them, nor the deposited amount was refunded to them. As such, there was, thus, a continuing cause of action, in favour of the complainants, to file the complaint, 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 Opposite Parties No.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.

12.           The next question, that falls for consideration, is, as to whether, possession of the unit was actually offered to the complainants vide any letter or not, by Opposite Parties No.1 and 2, if yes, then the said offer was given to the complainants within the stipulated time frame, as mentioned in the Agreement. Opposite Parties No.1 and 2 placed reliance on letter dated 21.05.2016 (Exhibit OP/4) and Completion Certificate dated 04.08.2014 (Exhibit OP/3) to prove that offer of possession of the unit was given to the complainants, with complete basic amenities. Opposite Parties No.1 and 2 informed the complainants vide the said letter dated 21.05.2016 (Exhibit OP/4) “process of handing over physical possession of the units in this tower will commence shortly.” Perusal of contents of this letter dated 21.05.2016 (Exhibit OP/4) clearly goes to show that Opposite Parties No.1 and 2 only intimated the complainants regarding process of handing over of possession of the units will start shortly but no specific period/date was mentioned that on which date actual physical possession would be offered to the complainants, complete in all respects. So, it is clearly proved that it is not the possession letter but only an intimation with regard to start the process of handing over of physical possession of the unit shortly. A bare perusal of the aforesaid letter dated 21.05.2016 revealed that Opposite Parties No.1 and 2 revised price of the unit and increased the super area of the unit. To prove the fact regarding completion of the amenities in the project, Opposite Parties No.1 and 2 also placed on record completion certificate (Exhibit OP/3). A bare perusal of the said certificate goes to show that GMADA granted the said certificate vide memo dated 04.08.2014. It is pertinent to note that Opposite Parties No.1 and 2 issued letter regarding intimation of possession only on 21.05.2016 i.e. almost after more than 1 ½ years of receipt of completion certificate. It is not understandable that if amenities were complete, in the year 2014, as per the completion certificate, then what was the hitch for not handing over possession to the complainants immediately, after receipt of the said certificate. Not only this, a number of emails were written by the complainants to Opposite Parties No.1 and 2 for not handing over of possession till March, 2016. As per Clause 21.1 of the Agreement, possession was to be delivered within a period of 36 months from the date of allotment i.e. latest by 22.08.2013 but Opposite Parties No.1 and 2 till the date of filing the complaint i.e. 04.05.2016, failed to offer/deliver possession of the unit to the complainants, complete in all respects. According to the complainants, they visited the site in September, 2015 to see the progress of construction and aggrieved of the situation, they also sent an email dated 04.09.2015 (Annexure C-28) to Opposite Parties No.1 and 2. When nothing was heard from Opposite Parties No.1 and 2, the complainants again sent reminder vide email dated 23.10.2015 (Annexure C-29). In response to the above email, Opposite Parties No.1 and 2 vide email dated 26.10.2015 (Annexure C-30) again gave stereotyped reply that ‘final finishing work is in progress x x ‘. When the complainants saw no positive steps by February, 2016, they sent detailed email dated 29.02.2016 (Annexure C-31) with a request to deliver possession of the unit, which was duly replied by Opposite Parties No.1 and 2 vide email dated 01.03.2016 (Annexure C-32), again gave stereotyped reply to the effect that they are taking all possible steps to expedite the delivery of possession of the unit and final finishing work is in progress, which is expected to be completed in April, 2016. So, it is clearly proved that when the completion certificate dated 04.08.2014 given to Opposite Parties No.1 and 2, they were not in a position to hand over physical possession of the unit to the complainants. Even the complainants have drawn our attention that the entry points of the said sector, in which, the plot is located, were sealed/fenced by the Govt. of Punjab, Forest Department, which fact was never disclosed to the complainants by Opposite Parties No.1 and 2. This fact is further fortified from the information obtained by similar located allottees under the Right to Information Act, 2005, from the Government of Punjab, Forest Department, in the matter, vide letter dated 05.05.2015 (Annexure C-38), which reads thus :-

“1.   The entry points of the project of M/s Emaar MGF Land Ltd. (Mohali Hills) for Sector 109, 108 and 105 have been closed by the Forest Department by thorny fencing wire and digging the trenches.

2.     The above mentioned paths has been closed due to the reason that user agency has not obtained the requisite permission from Government of India for the use of land of Forest Department under FCA 1980 for the paths.

3.     The paths will be opened only after obtaining the final approval from Government of India.

4.     x x x x x”

This fact is further fortified from a letter dated 15.04.2015 (Annexure C-39) sent by Opposite Parties No.1 and 2 to the Chief Administrator, GMADA, PUDA to take up the matter of sealing of entries of the project, in question, with the Govt. of Punjab i.e. regarding “illegal access” to their projects. The issue of sealing of entry points has already been decided by this Commission in the case titled as ‘Dr.Manuj Chhabra Vs. M/s Emaar MGF Land Limited, Complaint case No.140 of 2015, decided on 05.11.2015’ and ‘Prabhujeev Singh Bajaj Vs. Emaar MGF Land Limited, Complaint case No.43 of 2016, decided on 29.06.2016’. Thus, in view of the RTI information annexed by the complainants, it is proved that Opposite Parties No.1 and 2 have not obtained certain permissions from the Government; their project is sealed and they were not in a position to offer/deliver physical possession of the unit, complete in all respects, to the complainants at the time when completion certificate was received. It is, no doubt, true that letter of intimation of possession was sent to the complainants vide letter dated 21.05.2016 during pendency of the complaint, which in our considered opinion is of no help to Opposite Parties No.1 and 2, being it a subsequent event and there lies no rub in taking note of the subsequent event. Under similar circumstances, in Sanjay Kumar Baranwal & 2 Ors. Vs. Selene Constructions Ltd.,  Consumer Case No. 914 OF 2015, decided on 19.05.2016, the National Consumer Commission held as under:-

“The opposite parties have filed an application under Section 26 of the Consumer Protection Act, 1986, wherein it is objected that this case is not maintainable under Section 12 (1)(c) of the Consumer Protection Act, 1986. In this context, our attention has been invited towards the fact that Mrs. Chandra Prabha and Mr. Arun Choudhary who have been arrayed as complainant No.2 have already got the possession of the premises in dispute on 24-11-2015. However, this complaint was filed on 19-08-2015. They got the possession during the pendency of this case. This is a subsequent event. There lies no rub in taking note of the subsequent event.”

As such, the plea taken by Opposite Parties No.1 and 2, in this regard, being devoid of merit, stands rejected.

13.          The next question that falls for consideration, is, as to whether, the complainants were bound to accept offer of possession, in respect of the unit, in question, when the same was offered to them vide letter of intimation of possession dated 21.05.2016 (Exhibit OP/4), i.e. after long delay of more than 3 years, and that too, in the absence of any force majeure circumstances. It may be stated here that non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of Opposite Parties No.1 and 2 that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon’ble National Commission, held as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar   MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the Complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

 

                   In view of the above, it is held that since there was a material violation on the part of Opposite Parties No.1 and 2, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainants were at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

14.           Another objection raised by Counsel for Opposite Parties No.1 and 2 that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the unit within maximum period of 36 months, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 21.1 of the Agreement, subject to force majeure conditions and reasons beyond the control of the Company, and subject to the allottee not being in default of any of the provisions of the Agreement and having complied with all provisions, formalities, documentation etc. and the terms and conditions of the Agreement, the Company proposes to hand over the possession of the unit within a period of 36 months from the date of allotment. In the instant case, Opposite Parties No.1 and 2 did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by Opposite Parties No.1 and 2 or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 21.1 of the Agreement, Opposite Parties No.1 and 2 were bound to deliver possession of the unit, within a maximum period of 36 months from the date of allotment, as such, time was,  unequivocally made the essence of contract.

              Even otherwise, Opposite Parties No.1 and 2 cannot evade their liability, merely by saying that since the word tentative/ proposed/tentative was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon’ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of Opposite Parties No.1 and 2 in this regard also stands rejected.

15.          The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainants. According to Clause 21.1 of the Agreement, possession of the unit was to be delivered within a maximum period of 36 months from the date of allotment. In the present case, the unit was allotted to the complainants on 23.08.2010 (Annexure C-1), as such, period of 36 months has expired on 22.08.2013 and not more than that. So, it is clearly proved that Opposite Parties No.1 and 2 failed to deliver possession of the plot to the complainants, within the stipulated period, as mentioned in the Agreement. On the other hand, Opposite Parties No.1 and 2 have already received the huge amount of Rs.91,77,665/-, towards the said unit, as is evident from the statement of account (Annexure C-33). By making a misleading statement, that possession of the unit, was to be delivered within a maximum period of 36 months, from the  date of allotment, and by not abiding by the commitments, made by Opposite Parties No.1 and 2, they were not only deficient, in rendering service, but also indulged into unfair trade practice.

16.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.91,77,665/-, deposited by them. It is an admitted fact that Opposite Parties No.1 and 2 are unable to deliver  possession of the unit, in question, complete in all respects, within the stipulated timeframe, as mentioned in the Agreement and firm date of delivery of possession of the unit, could not be given to them (complainants). The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit, in question. Opposite Parties No.1 and 2, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, Opposite Parties No.1 and 2 are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

17.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is not in dispute that an amount of Rs.91,77,665/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by Opposite Parties No.1 and 2, for their own benefit. There is no dispute that for making delayed payments, Opposite Parties No.1 and 2 were charging heavy rate of interest (compounded @15% p.a.) as per Clause 20.1 of the Agreement, for the period of delay in making payment of installments.  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  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.91,77,665/- alongwith interest @15% p.a. compounded, from the respective dates of deposits till realization. 

18.          As far as the plea taken by Opposite Parties No.1 and 2, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties No.1 and 2) case, that they were ready with possession of the unit, to be delivered to the complainants, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of Opposite Parties No.1 and 2, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are 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 Opposite Parties No.1 and 2, in this regard, has no legs to stand and is accordingly rejected.

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

20.          For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 and 2 are jointly and severally directed, as under:-

1. To  refund   the  amount of Rs.91,77,665/-, to  the complainants, alongwith interest compounded @ 15% p.a., from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and 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.50,000/- to the complainants.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then Opposite Parties No.1 and 2 shall be liable to pay the amount mentioned in Clause (i) with interest compounded     @18% p.a., instead of interest compounded @ 15% p.a., from the respective dates of deposits, till realization, and interest compounded @15% p.a., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

 

21.          The complaint qua Opposite Party No.3 stands dismissed.

22.          However, it is made clear that, if the complainants have 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 them (complainants).

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

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

Pronounced.

September 12, 2016.                                      Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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