Chandigarh

StateCommission

CC/95/2015

Shri Shingara Singh - Complainant(s)

Versus

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

Balwinder S Kalsi, Adv.

18 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	95 of 2015
Date of Institution	:	19.05.2015
Date of Decision	:	18.08.2015

 

Shri Shingara Singh son of Shri Bakshish Singh, 65, Cottes Brooke Gardens, East Munsbury, Northampton, U.K.

2^nd Address:-

House No.36, Sector 70, Mohali, Punjab.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Limited, having its Registered Office at ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director.
2. Regional Manager, M/s Emaar MGF Land Limited, S.C.O. 120-122, First Floor, Sector 17-C, Chandigarh-160017.

              ....  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.Balwinder Singh Kalsi, Advocate for the complainant.

                   Sh.Sanjeev Sharma, Advocate for the Opposite Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that in the year 2011, the Opposite Parties, floated a scheme, for the allotment of residential apartments, in their upcoming project, under the name and style of “The Views”, S.A.S. Nagar, Mohali, District Mohali, Punjab. In response to the assurance given by the representative of the Opposite Parties,  with regard to the salient features of the project, aforesaid, one Mr.Gurnek Singh, applied for the allotment of an apartment, measuring 1550  square feet, on payment of Rs.7 lacs, as earnest money.

2.       Vide provisional allotment letter dated 01.08.2011, Mr.Gurnek Singh was allotted apartment No.TVM-K3-GF-GF03, alongwith one car parking space. The basic sale price of the said apartment was to the tune of Rs.48,82,500/-. Apart from this, the complainant was also required to pay Rs.1,50,000/- per parking bay, External Development Charges (EDC) to the tune of Rs.1,74,080/- and Interest Free Maintenance Charges, to the tune of Rs.15,500/-.
3.       Unit Buyer  Agreement dated 26.05.2012, Annexure C-2, was executed between Mr.Gurnek Singh and the Opposite Parties. It was stated that, subsequently, the complainant purchased the said apartment from Mr.Gurnek Singh, and repaid him the amount of Rs.7 lacs, which he had paid to the Opposite Parties, in respect of earnest money of the said unit. As such, the unit booked by Mr.Gurnek Singh, was transferred in the name of the complainant, by the Opposite Parties.
4.       It was further stated that the complainant kept on making payment of instalments, towards the said apartment, as per the payment plan opted by him. It was further stated that the complainant had also paid the delayed interest on the payments, which were made by him, after some delay, as per the terms and conditions of the Unit  Buyer Agreement  dated 26.05.2012, Annexure C-2. It was further stated that, the complainant, in all, deposited the amount of Rs.53,49,000/- towards the price of the said unit, which also included delayed payment interest, to the tune of Rs.5,48,431/-
5.       It was further stated that according to Clause 21.1 of the Unit Buyer  Agreement  dated 26.05.2012, Annexure C-2, the Opposite Parties were to hand over physical possession of the said apartment, in favour of the complainant, within a period of 36 months, from the date of allotment i.e. from 01.08.2011. It was further stated that it was also mentioned in Clause 23.1 of the Unit Buyer Agreement dated 26.05.2012, Annexure C-2, that, in case, the Opposite Parties, failed to deliver possession of the apartment, in question, within the stipulated period, they would be liable to pay penalty/compensation, to the complainant, @ Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Thus, the Opposite Parties were to deliver possession of the apartment, in question, to the complainant, latest by 31.07.2014.
6.       It was further stated that the complainant visited the site, a number of times, after 31.07.2014, but was surprised to see that the development work was not complete and the construction work was still going on. It was further stated that the complainant contacted the Opposite Parties, through every possible means, with a request to apprise him, with regard to the construction at the site, as also delivery of possession of apartment No.TVM-K3-GF-GF03, but  they lingered on the matter, on one pretext or the other.
7.       It was further stated that despite the fact that the complainant had already paid an amount of Rs.53,49,000/-, which included delayed payment interest also,  to the Opposite Parties, in respect of apartment No.TVM-K3-GF-GF03, possession thereof, was not delivered to him by the stipulated date or even till the date of filing the instant complaint, nor in the alternative refund was made to him.
8.       It was further stated that the Opposite Parties collected the amount of Rs.53,49,000/- towards the price of apartment, in question, by making a false promise, that physical possession thereof, shall be handed over within a period of 36 months, from the date of allotment i.e. from 01.08.2011, but they did not abide by their commitment. It was further stated that, as such, the amount deposited by the complainant, towards the price of apartment, was utilized by the Opposite Parties, as a result whereof, he was caused huge financial loss. It was further stated that the complainant also underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission, on the part of the Opposite Parties.
9.       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 refund the amount of Rs.53,49,000/- alongwith interest @15% P.A., from the respective dates of deposits, till realization; pay compensation to the tune of Rs.3 lacs, on account of mental agony, physical harassment and deficiency in rendering service; and  cost of litigation, to the tune of Rs.30,000/-.
10.       The Opposite Parties, put in appearance, on 24.06.2015, and filed their written version, on 07.08.2015. In the written version, the Opposite Parties, pleaded that the complainant did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act, as he being a Foreign National, had purchased the unit, in question, with an intention, to earn profits, after selling the same, as and when there was escalation in the prices of real estate. It was further pleaded that the complaint was not maintainable, as an arbitration clause existed, in the Unit Buyer Agreement dated 26.05.2012, Annexure C-2, and, in case of any dispute, the matter was to be referred to the Arbitration. It was further pleaded that time was not the essence of contract. It was further pleaded that since the complainant sought the enforcement of Agreement, in respect of the immovable property, only a suit for specific performance was maintainable. The factum, with regard to the allotment of unit No.TVM-K3-GF-GF03, in favour of Mr.Gurnek Singh and execution of the Unit Buyer Agreement dated 26.05.2012, Annexure C-2, in respect of the same between him (Mr.Gurnek Singh) and the Opposite Parties was also admitted. It was also admitted that, subsequently, unit No.TVM-K3-GF-GF03 was transferred, in favour of the complainant, in the manner, referred to above. It was also admitted that the amount of Rs.53,49,000/-, towards the price of unit No.TVM-K3-GF-GF03, which also included delayed payment interest, was received by the Opposite Parties. It was stated that since as per Clause 21.1 of the Unit Buyer Agreement dated 26.05.2012, Annexure C-2, the Opposite Parties were to hand over physical possession of the said apartment, in favour of the complainant, within a period of 36 months, from the date of execution of the same (Unit Buyer Agreement) i.e. by 25.05.2015, as such, the complaint having been filed on 19.05.2015 was premature. It was further stated that since the finishing works were going on, as such the possession of unit No.TVM-K3-GF-GF03, would be delivered to the complainant shortly. It was further stated that the complainant defaulted, in making payment of instalments, towards the said unit, as a result whereof delayed payment interest was charged from him, as per the terms and conditions of Unit Buyer  Agreement dated 26.05.2012, Annexure C-2. 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 Unit Buyer  Agreement dated 26.05.2012, Annexure C-2, which safeguarded his rights. It was further stated that, in case, the complainant wanted refund, the same would amount to surrender of the unit, and attract forfeiture charges, as per Clause 21.10, read with Clause 3.2 of the same (Buyer's Agreement). It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
11.       The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
12.       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.
13.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 
14.       The first question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. The complainant, no doubt, is a Non-Resident Indian, (NRI), and is settled in U.K. It may be stated here that the complainant clarified, in his rejoinder, that he purchased unit No.TVM-K3-GF-GF03, with a view to reside therein, as and when he visited India. The objection of the Opposite Parties, that the complainant is a permanent citizen of U.K., though, originally belonged to India, and, thus, did not purchase the residential apartment, in India, with a view to have his residence, in the same, but, on the other hand, being speculator/investor, he purchased the same (apartment), for resale thereof, as and when there was escalation, in prices, and, as such, he did not fall within  the definition of a ‘consumer’, as per Section 2(1)(d)(ii) of the Act, does not carry any weight and the same deserves to be rejected. The mere fact that it was a residential apartment, which was purchased by the complainant, was sufficient to prove that it was to be used for the purpose of residence, by him, may be off and on, on his visit to India, or for the purpose of his residence, permanently. There is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. No evidence was also produced by the Opposite Parties, to prove that the complainant owned a number of other residential properties, in the tricity, and, as such, the residential apartment, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof, or to rent out the same. No law of the land, debars NRI, though originally belonging to India, to purchase a residential property, in India, with a view to reside therein. The complainant, thus, availed of the services of the Opposite Parties,  for consideration, for the purchase of residential apartment, in question, with a view to reside in the same. 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 their written statement, therefore,  being devoid of merit, is rejected.
15.       The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was premature or not. It may be stated here, that the Unit Buyer  Agreement dated 26.05.2012, Annexure C-2,  in respect of unit No.TVM-K3-GF-GF03, was executed between the parties, physical possession whereof, as per Clause 21.1 thereof, was to be handed over to him (complainant), within a period of 36 months, from the date of allotment i.e. from 01.08.2011. Thus, the Opposite Parties were to deliver possession of unit No.TVM-K3-GF-GF03, to the complainant, latest by 31.07.2014. Thus, by no stretch of imagination, it could be said that the complaint having been filed by the complainant, on 19.05.2015 was premature. The submission of the Counsel for the Opposite Parties,  in this regard, being devoid of merit, must fail, and the same stands rejected.
16.       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 existence of an arbitration Clause in the Unit Buyer  Agreement dated 26.05.2012, Annexure C-2.  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.”

17.       Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Unit Buyer  Agreement dated 26.05.2012, Annexure C-2, 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.
18.       It was next submitted by  the Counsel for the Opposite Parties,  that since the complainant sought enforcement of the  Unit Buyer Agreement dated 26.05.2012, Annexure C-2, 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 complainant hired the services of the Opposite Parties, for purchasing the unit, in question, and he was allotted the same, in the manner, referred to above, for consideration. According to Clause 21.1 of the Unit Buyer  Agreement dated 26.05.2012, Annexure C-2, the Opposite Parties were to hand over physical possession of unit No.TVM-K3-GF-GF03, in favour of the complainant, within a period of 36 months, from the date of allotment i.e. from 01.08.2011, complete in all respects, i.e. latest by 31.07.2014, failing which, they were liable to pay penalty/compensation, to him (complainant), @ Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay. It was not that the complainant 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”

19.       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 complainant has 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 him, as he  falls within the definition of a consumer, 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.
20.       The next question, that falls for consideration, is, as to whether, time was the essence of contract or not.  No doubt, in this regard, the Counsel for the Opposite Parties, placed reliance on Clauses 21.7 and 21.8 of the Unit Buyer  Agreement dated 26.05.2012, Annexure C-2, which read as under:-

“21.7 The Company, upon obtaining occupation certificate from the competent authorities and after all other terms stipulated in this agreement being fulfilled shall offer in writing to the Allottee to take possession of the Unit, for Allottee's occupation and use within thirty (30) days from the date of issue of such notice and the Company shall hand over the said Unit to the Allottee for occupation and use subject to the Allottee having complied with all the terms and conditions of this Agreement and not being in default under any of the provisions of this Agreement and having completed all the formalities, documentation etc. as may be prescribed by the Company in this regard.

21..8 Upon receiving intimation in writing from the Company, the Allottee shall within the time stipulated in the notice as stated in the abovestated take over the possession of the said Unit from the Company by executing necessary indemnities, undertakings, tripartite maintenance agreement and such other documentation as the Company may prescribe. The Company shall, after satisfactory execution of such documents and payment by the Allottee of all the dues under this Agreement including the payment towards stamp duty and registration charges, permit the Allottee to occupy the Unit, on the terms and conditions contained in this Agreement”.

 

21.           It may be stated here, that perusal of Clauses 21.7 and 21.8 of the Unit Buyer Agreement  dated 26.05.2012, Annexure C-2, clearly reveals that the same were to come into force, only in the event,  offer of possession in respect of the unit, in question, had been made to the complainant, after obtaining occupation certificate from the Competent Authorities, by the Opposite Parties. Whereas, on the other hand, in the instant case, the Opposite Parties did not offer the possession of unit No.TVM-K3-GF-GF03, to the complainant, for want of finishing work, as admitted by them, in their written version. As such, reliance was wrongly placed by the Counsel for the Opposite Parties, on Clauses 21.7 and 21.8 of the Unit Buyer Agreement dated 26.05.2012, Annexure C-2, to contend that time was not the essence of contract. On the other hand, as per Clause 21.1 of Unit Buyer Agreement dated 26.05.2012, Annexure C-2, the Opposite Parties were to hand over physical possession of the said apartment, in favour of the complainant, within a period of 36 months, from the date of allotment i.e. from 01.08.2011. It was further mentioned in Clause 23.1 of the Unit Buyer Agreement dated 26.05.2012, Annexure C-2, that, in case, the Opposite Parties  failed to deliver possession of unit No.TVM-K3-GF-GF03, within the stipulated period, they were liable to pay penalty/ compensation, to the complainant, @ Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Thus, the Opposite Parties were to deliver possession of the apartment, in question, to the complainant, latest by 31.07.2014. The time was, thus, unequivocally made the essence of contract as per Clause 2.1 of the Agreement aforesaid. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
22.           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 21.1 of the Unit Buyer  Agreement dated 26.05.2012, Annexure C-2, the Opposite Parties were to hand over physical possession of the said apartment, in favour of the complainant, within a period of 36 months, from the date of allotment i.e. from 01.08.2011 i.e. latest by 31.07.2014. Even after the expiry of more than about four years, from the date of allotment of unit No.TVM-K3-GF-GF03, and more than about one year, from the stipulated date, the possession thereof, was not even offered 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.
23.           Possession of the unit, in question, was neither offered nor delivered to the complainant,  by the stipulated dated i.e. 31.07.2014, nor by the time, the complaint was filed nor till date. It has been frankly admitted by the Opposite Parties, in paragraph Nos.6,10,12,13, 15 to 17 of their written version, that the possession of unit No.TVM-K3-GF-GF03 could not be delivered to the complainant, for want of finishing work. On the other hand, it is an admitted fact and also proved from Annexure R-3, statement of account that the sale consideration, including delayed payment interest, to the tune of Rs.53,49,000/-, has already been received by them.  By making a misleading statement, that possession of the unit, was to be delivered within the maximum period of three years, from the  date of allotment i.e. from 01.08.2011,  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, and as such, had no right, to retain the amount of Rs.53,49,000/-, deposited by the complainant.
24.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of the amount deposited with interest, if so, at what rate. The amount of Rs.53,49,000/-, including delayed payment interest, was deposited by the complainant, in respect of unit No.TVM-K3-GF-GF03. The complainant was deprived of his hard earned money, to the tune of Rs.53,49,000/- on the basis of misleading information, given by the Opposite Parties, that he would be handed over legal physical possession of unit No.TVM-K3-GF-GF03, on or before 31.07.2014, but they failed to do so. The complainant was, thus, caused financial loss.  Hard earned money, deposited by the complainant, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainant, in some bank, or had he invested   the   same,   in some business, he would have earned handsome returns thereon. In case of delay, in deposit  of installment(s), the Opposite   Parties had been charging compound interest @15% P.A., from the complainant, as per Clause 20.1 of the Unit Buyer  Agreement dated 26.05.2012, Annexure C-2. It is, therefore, held that the Opposite Parties, by neither delivering possession of unit No.TVM-K3-GF-GF03, by the stipulated date, nor, in the alternative, refunding the amount to the complainant, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant, is, thus, entitled to the refund of Rs.53,49,000/- alongwith interest @12% P.A., from the respective dates of deposits.
25.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to him, for a long number of years, by not delivering the physical possession of unit No.TVM-K3-GF-GF03, to him, by the Opposite Parties, by the promised date i.e. 31.07.2014. 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 the entire sale consideration, towards unit No.TVM-K3-GF-GF03, possession thereof, was not offered to the complainant, by the stipulated date. The complainant purchased unit No.TVM-K3-GF-GF03, with the hope to have a roof over his head alongwith with his family members, as and when he visited India, but his hopes were dashed to the ground. Till date, i.e. even after the expiry of a period of more than about four years from allotment and one year, from the promised date  i.e. 31.07.2014, delivery of physical possession of unit No.TVM-K3-GF-GF03, has not yet been given, to the complainant, nor the amount has been refunded to him, by the Opposite Parties. The complainant underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation, on account of mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Parties, if granted, to the tune of Rs.2,00,000/- (Rs.Two lacs), shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.2,00,000/- (Rs.Two lacs).
26.       The Counsel for the Opposite Parties, also submitted that, in case, the complainant wanted refund, the same would amount to surrender of the unit, and attract forfeiture charges, as per Clause 21.10, read with Clause 3.2 of the same (Buyer's Agreement). The submission of the Counsel for the Opposite Parties, does not merit acceptance. It may be stated here, that the Opposite Parties, failed to produce on record, any cogent and reliable document, to prove that possession of the unit, in question, had been offered to the complainant. On the other hand, as stated above, it was frankly admitted by the Opposite Parties, in their written version, that finishing work of the apartment, in question, was still going on.  As held above, neither possession of the unit, in question, was offered, nor delivered to the complainant till date by the Opposite Parties. Had possession of the unit, in question, been offered by the Opposite Parties, before filing the complaint, and had the complainant, refused to take the same, the matter would have been different. In those circumstances, it would have been held that since the complainant rescinded the contract, as such, he was entitled to the refund of amount, after forfeiture, as per Clause 21.10, read with Clause 3.2 of the same (Buyer's Agreement). Since the Opposite Parties breached the terms and conditions of the Agreement Annexure C-2, by not offering possession of the unit, in question, to the complainant, they could not take any benefit of their wrong. The complainant did not breach the terms and conditions of the Agreement. Thus, the forfeiture clause could not be invoked in this case. 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. The Opposite Parties are jointly and severally held liable and directed as under:-
    1. To refund the amount of  Rs.53,49,000/- 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.2,00,000/- (Rs.Two lacs), on account of mental agony and physical harassment, caused to the complainant, at their hands.
    3. To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
    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/-.
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.

August 18, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

      MEMBER

 

Rg.