Chandigarh

StateCommission

CC/183/2014

Smt. Shakuntala Rani & Anr. - Complainant(s)

Versus

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

R.C. Sharma

02 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	183 of 2014
Date of Institution	:	15.12.2014
Date of Decision	:	02/03/2015

 

1. Smt. Shakuntala Rani wife of Late Sh.Parkash Chand, SCF No.22, Sector 18-C, Chandigarh.
2. Sh. Rajiv Chanana son of Late Sh.Parkash Chand, SCF No.22, Sector 18-C, Chandigarh.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Limited, having its Registered Office at MGF House, 17-B, Asif Ali Road, New Delhi, through its Managing Director.
2. Regional Manager M/s Emaar MGF Land Limited, SCO 120-122, 1^st 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. R.C. Sharma, Advocate for the complainants.

                  Sh. Sanjeev Sharma, Advocate for the Opposite                                Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that the complainants applied to the Opposite Parties, vide application No.2020, for the allotment of a residential plot, for their residence and paid a sum of Rs.17,25,000/-, as registration amount. The complainants were allotted plot no.10, measuring 500 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, (hereinafter to be referred as 109-AP-10-500)  @Rs.11,500/- per square yard, plus (+) External Development Charges of Rs.2,81,840/- plus (+) Preferential Location Charges of Rs.14,37,500/-.  The basic sale price of the said residential plot was to the tune of Rs.57,50,000/-.Thus, the total sale consideration, in the sum of Rs.74,69,340/-, was required to be paid by the  complainants.

2.       Plot Buyer's Agreement dated 30.06.2007, Annexure C-1, in respect of plot No.109-AP-10-500,   was executed between the parties. It was stated that, as per Clause 8 of the Plot Buyer's Agreement dated 30.06.2007, Annexure C-1, subject to force majeure conditions, and reasons beyond the control of the Company, physical possession of the fully developed residential plot, was to be handed over to the complainants, within a period of two years, but not later than three years, from the date of execution thereof (Agreement). It was further mentioned, in the said Agreement, that, in case of delay, in handing over possession of the fully developed plot, within three years, from the date of execution of the same, the Opposite Parties were liable to pay compensation/ penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay.
3.       Thereafter, as per the installment payment plan, till 17.03.2009, the complainants, in all, deposited an amount of Rs.71,80,841/-, towards part price of the said plot. They, thus, qualified for waiver of 5% of the basic sale price. It was further stated that, in this manner, the entire sale consideration, towards the said plot, was paid by the complainants, to the Opposite Parties.
4.       It was further stated that the complainants patiently waited for the delivery of physical possession of the plot, in their favour. It was further stated that when possession of the plot, in question, was not offered, by the stipulated date, the complainants wrote letter dated 01.08.2014, to the Opposite Parties, with a request to apprise them about the status of the project, but to no avail. It was further stated that, in response to the letter dated 01.08.2014, the Opposite Parties, vide letter dated 30.08.2014 Annexure C-5, intimated the complainants that possession of the plot, in question, could not be handed over to them, for want of basic amenities at the site. However, it was intimated to the complainants, vide the said letter that the Opposite Parties shall update them, regarding the status of the unit, in question, at regular intervals.
5.       It was further stated that after waiting for sometime, the complainants requested the Opposite Parties to deliver physical possession of the plot, in question, but to no avail. It was further stated that the complainants approached the Opposite Parties, through every possible means, with a request to deliver possession of the plot, in question, but every time, they kept on putting off the matter, on lame excuses.  It was further stated that, left with no other alternative, the complainants sought refund of the amount, deposited by them, alongwith interest and compensation. However, till date, neither possession of the plot, in question, was delivered to the complainants, nor the amount deposited was refunded to them. Various requests were made by the complainants, in the matter, but to no avail. It was further stated that the project floated by the Opposite Parties, was just a farce.
6.       It was further stated that the huge amount of Rs.74,68,341/- (infact Rs.71,80,841/-), deposited by the complainants, towards part price of the plot, in question, was utilized by the Opposite Parties, as a result whereof, they were caused financial loss. It was further stated that even the complainants underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot, to them.
7.       It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.74,68,341/- (infact Rs.71,80,841/-), alongwith interest @18% P.A., from the respective dates of deposits, till realization; compensation to the tune of Rs.4 lacs, towards mental agony, physical harassment, and deficiency in rendering service; pay compensation/penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for the period of delay; and cost of litigation, to the tune of Rs.30,000/-.
8.       The Opposite Parties were served, and put in appearance, on 21.01.2015. They filed their written version, on 23.02.2015. In the written version, it was pleaded by the Opposite Parties, that the cause of action, accrued in favour of the complainants, on 29.06.2010, when the possession of plot No.109-AP-10-500, was to be offered to them, but was not offered. It was further pleaded that the complainants could file the complaint, within 2 years, from 29.06.2010. It was further pleaded that the complaint having been filed on 15.12.2014, was palpably barred by time. It was further pleaded that this Commission has no territorial and pecuniary Jurisdiction, to entertain and decide the complaint. It was further pleaded that the complaint was not maintainable, as an arbitration clause, existed, in the Plot Buyer's Agreement, and, in case of any dispute, the matter was to be referred to the Arbitration. It was admitted that the complainants applied to the Opposite Parties, vide application  No. 2020, for the allotment of a residential plot, as a result whereof, they were allotted plot no.10, measuring 500 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab,  @Rs.11,500/- per square yard, plus (+) External Development Charges of Rs.2,81,840/- plus (+) Preferential Location Charges of Rs.14,37,500/- the total sale consideration whereof was Rs.74,69,340/-. It was also admitted that the amount of Rs.71,80,841/-, towards part price of plot No.109-AP-10-500, was deposited by the complainants. It was also admitted that, as per the Plot Buyer's Agreement dated 30.06.2007, Annexure C-1, possession of the plot, in question, was to be delivered to  the  complainants, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement). It was, however, stated that it was well within the knowledge of the complainants that time was not the essence of contract and for any delays, stipulated penalty had been provided in the Plot  Buyer's Agreement dated 30.06.2007, Annexure C-1, which safeguarded their rights. It was further stated that the complainants defaulted, in making timely payments. It was also admitted that the possession of plot No.109-AP-10-500, could not be delivered by the stipulated date, and even till the date of filing the complaint, for want of basic amenities, at the site. It was further stated that since the amenities, where plot No.109-AP-10-500, is located, have not been completed, the complainants could be allotted some other plot, in the project. It was further stated that, in case, the complainants sought refund of the amount, deposited by them, towards the said plot, they would lose considerable amount, on account of cancellation and forfeiture, as per Clause 2 (f) of the Plot Buyer's Agreement dated 30.06.2007, Annexure C-1. 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.
9.       In the rejoinder, filed by the complainants, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version oif the Opposite Parties.
10.       The complainants submitted their joint affidavit, in support of the averments, contained in the complaint, by way of evidence, alongwith which, a number of documents were attached.
11.       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, statement of account dated 09.02.2015, in respect of payment towards the price of the said plot, made by the complainants, was attached. 
12.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.   
13.       The first question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. No doubt, it was submitted by the Counsel for the Opposite Parties, that since the Plot Buyer's Agreement, Annexure C-1, in respect of plot No.109-AP-10-500, was executed on 30.06.2007 and the possession thereof, (plot No.109-AP-10-500), was to be handed over by 29.06.2010, the cause of action accrued to them on that date (29.06.2010) and the complaint having been filed on 15.12.2014, was palpably barred by time. It may be stated here that, according to the Plot Buyer's Agreement dated 30.06.2007,  Annexure C-1, the Opposite Parties were to hand over physical possession of the plot, in favour of the complainants, 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 their written version, that the possession of plot No.109-AP-10-500, allotted in favour of the complainants, vide Plot Buyer's Agreement dated 30.06.2007, Annexure C-1, could not be handed over to them, for want of basic amenities. Thus, neither the possession of plot No.109-AP-10-500, was offered, nor delivered to the complainants, by the stipulated date, nor till the date of filing the complaint nor the penalty, as provided in the Plot Buyer's Agreement dated 30.06.2007, Annexure C-1, was paid to them, nor in the alternative the refund of Rs.71,80,841/-, deposited by them, was made to them. There was, thus, a continuing cause of action, in favour of the complainants. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380,  wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement, made in the advertisements of the petitioner, knowing fully well that the land, in question, was under litigation. Consumer complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon'ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
14.       The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint, could be filed in the State Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to the complainants, or the Party(s) against which, the reliefs sought, was/were working for gain or residing. It is evident, from the receipts dated 17.06.2008, 16.09.2008, and 16.12.2008, placed on the file that the complainants made payment of Rs.5,75,000/-Rs.7,15,920/- and Rs.7,15,920/-  respectively, on account of installments of plot No.109-AP-10-500, to the authorized signatory of the Opposite Parties, at Chandigarh. It means that a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission.  This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Parties, in their written version, that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, therefore, being devoid of merit, must fail, and the same stands rejected.
15.       The next question, that falls for consideration,  is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that price of the plot, in question,  inclusive of External Development Charges (EDC) and Preferential Location Charges (PLC) was  Rs.74,69,340/-. The complainants have sought refund of the amount of Rs.74,68,341/-, alongwith interest @18% P.A., from the respective dates of deposits, till realization plus (+)  compensation to the tune of Rs.4 lacs, towards mental agony, physical harassment, and deficiency in rendering service plus (+)  compensation/ penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for the period of delay; and cost of litigation, to the tune of Rs.30,000/-. The aggregate value of the services/goods/refund sought, compensation, and cost, claimed by the complainants, in the complaint, [excluding the interest claimed @18% P.A. aforesaid], came to be around Rs.93,23,341/- and, as such, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection, taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
16.       The next question, that arises for consideration, is, as to whether, interest @18% P.A., claimed by the complainants, in the manner, referred to above, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission.  In Shahbad Cooperative  Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/-it (amount) will exceed Rs.20 lakhs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/ appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

 

“Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.

Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs”.

17.       The observations made, in the aforesaid case, are fully applicable, to the facts of the instant case. In the instant complaint, interest @18% P.A., claimed by the complainants, in the manner, referred to above, was not required to be added, for determining the pecuniary Jurisdiction of this Commission. The question thus stands answered, in the manner, referred to above.
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 existence of an arbitration Clause, in the Plot  Buyer's Agreement dated 30.06.2007, Annexure C-1.  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 an arbitration Clause, in the Plot  Buyer's Agreement dated 30.06.2007, Annexure C-1,  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, which arises is, as to within which period, delivery of possession of the plot, was to be given to the complainants. The Plot  Buyer's Agreement, Annexure C-1, in respect of plot No.109-AP-10-500, was executed between the parties, on 30.06.2007. 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 the possession of plot No.109-AP-10-500, in favour of the  complainants, within three years, from the date of execution of the Plot  Buyer's Agreement dated 30.06.2007, Annexure C-1. Admittedly, possession of the plot, in question, was not delivered to the complainants, by the stipulated date, or even by the time, the complaint was filed. The Counsel for the Opposite Parties, frankly admitted that the Opposite Parties are not able to deliver possession of the plot, in question, to the  complainants, by providing all the amenities, as mentioned in the Agreement, till date. As stated above, more than 95% of the sale consideration, towards the said plot, has been paid by the complainants, but possession of plot No.109-AP-10-500, was not delivered to them, as the same had not been developed.  Still the Opposite Parties have not given any exact date of delivery of possession of plot No.109-AP-10-500, to the complainants. Since, neither possession of plot No.109-AP-10-500, which was allotted to the complainants, was offered to them (complainants) by the stipulated date nor by the time, the complaint was filed, nor till date, they (complainants) were right, in seeking refund from the Opposite Parties. By making a misleading statement, that possession of plot No.109-AP-10-500,   would be given to the complainants, within the maximum period of three years, from the date of execution of the Plot  Buyer's Agreement dated 30.06.2007, Annexure C-1, 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.
20.       No doubt, the Opposite Parties, placed reliance on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742,  and Ashok Khanna Vs. Ghaziabad Development Authority, Revision Petition No.2002 of 2005, decided by the National Consumer Disputes Redressal Commission, New Delhi, on 18.08.2009, to contend that time was not the essence of contract. The facts of Smt. Chand Rani's and Ashok Khanna's cases (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. Whereas, in Ashok Khanna's case (supra), the National Consumer Disputes Redressal Commission, New Delhi, held that at the time of delivery of possession, the respondent did not charge any additional price. Rs.57,000/- were paid by the petitioner without any protest. In the said case, the possession was taken on 15.12.1993, whereas, the complaint was filed in the later months of 1995, i.e., after a lapse of about 2 years, which showed that, at the time of delivery of possession, the petitioner was satisfied, but later on he changed his mind and filed the complaint, seeking interest on the deposited amount. 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 30.06.2007, Annexure C-1, 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), yet, the same was not delivered till date. The time was, thus, unequivocally made the essence of contract. Therefore, no help from the aforesaid cases, can be drawn, by the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.     
21.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to the refund of amount of Rs.71,80,841/-, deposited by them, towards the part price of plot No.109-AP-10-500,  in the manner, referred to above. As stated above, the Opposite Parties, failed to deliver possession of plot No.109-AP-10-500, allotted in favour of the complainants, by the stipulated date or even till date, for want of basic amenities. The Opposite Parties, therefore, had no right, to retain the hard earned money of the complainants, in the sum of Rs.71,80,841/-, deposited towards the part price of plot No.109-AP-10-500,  without rendering them any service. Under these circumstances, the complainants were left with no alternative, than to ask for the refund of sale consideration paid by them. In our considered opinion, the complainants are entitled to the refund of amount of Rs.71,80,841/-, deposited by them, towards the part price of plot No.109-AP-10-500. By not refunding the amount, aforesaid, deposited by the complainants, the Opposite Parties were deficient, in rendering service.
22.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount deposited by them, if so, at what rate. The amount of Rs.71,80,841/-, towards the part price of plot No.109-AP-10-500, was deposited by the complainants. The complainants were deprived of their hard earned money, to the tune of Rs.71,80,841/-,   on the basis of misleading information, given by the Opposite Parties, that they would be handed over legal physical possession of plot No.109-AP-10-500, on or before 29.06.2010, but they failed to do so. The complainants were, thus, caused financial loss.  Hard earned money, deposited by the complainants, towards the part price of plot No.109-AP-10-500, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. In case of delay, in deposit of instalment(s), the Opposite Parties had been charging compound interest @15% P.A., from the complainants, as per Clause 3 of the Plot  Buyer's Agreement dated 30.06.2007, Annexure C-1. It is, therefore, held that the Opposite Parties, by neither delivering possession of the plot No.109-AP-10-500, by the stipulated date, nor refunding the amount to the complainants, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainants, are, thus, entitled to the refund of Rs.71,80,841/-, alongwith interest @12% P.A., from the respective dates of deposits.
23.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, on account of mental agony and physical harassment or not. After making payment of Rs.71,80,841/-, i.e. more than 95%, towards the price of plot No.109-AP-10-500, no progress was made by the Opposite Parties, at the site, by the stipulated date. The complainants had purchased the said plot, to have a roof over their head, by constructing a house thereon, but their hopes were dashed to the ground, when possession of the same was not even offered to them, after about 8 years of the allotment thereof, what to speak of delivery thereof. The complainants, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. The complainants, are, thus, entitled to compensation, to the tune of Rs.two lacs, on account of this reason.
24.       The Counsel for the Opposite Parties, however, submitted that the parties being governed by the terms and conditions of the Plot  Buyer's Agreement dated 30.06.2007, Annexure C-1, as per Clause 8 of the same (Plot Buyer’s Agreement), in case of delay, in the delivery of physical possession of residential plot, they (Opposite Parties), were only liable to make payment of penalty, in the sum of Rs.50/- (Rupees Fifty only) per sq.yd, per month, for such period of delay, beyond 3 (three years), from the date of execution of the same. It may be stated here, that such a submission of the Counsel for the Opposite Parties, would have been considered to be correct, had the complainants prayed for the delivery of physical possession of the residential plot. In the instant case, prayer for the refund of amount, was made by the complainants, as there was no progress, in development of the area, where the plot, in question, is located,  and even the delivery of possession thereof, was not in sight. This Clause could be invoked by the Opposite Parties, only, in the event, the complainants had sought relief of delivery of physical possession of the residential plot.  The Counsel for the Opposite Parties also submitted that, in case, the complainants were interested in refund of the amount, the forfeiture Clause of the Agreement shall be applicable. There was no breach of the terms and conditions of the Agreement, on the part of the complainants. They performed their obligations as per the terms and conditions of the Agreement. They, therefore, were not defaulters. For their own fault, the Opposite Parties could not invoke the forfeiture Clause in the peculiar facts and circumstances, prevailing in this case. As stated above, the hard earned money of the complainants was used by the Opposite Parties, for investment, for a long time. They were neither given physical possession of the residential plot, nor refund of the amount. If the Opposite Parties are allowed to invoke Clause 8 of the Agreement, in the instant case, that would amount to enriching them, at the cost of the complainants. Under these circumstances, shelter cannot be taken by the Opposite Parties, under Clause 8 of the Plot Buyer's Agreement dated 30.06.2007, Annexure C-1. Had the complainants prayed for possession of the residential plot, in question, the matter would have been different. The complainants, in our considered opinion, as stated above, are entitled to the refund of amount, alongwith interest @12% P.A. 
25.       On the other hand, the Counsel for the complainants, submitted that the complainants, besides refund of the amount, aforesaid, deposited by them, alongwith interest and compensation, are also entitled to penalty @ Rs.50/- per square yard, as per Clause 8 of the Agreement, referred to above, per month, for such period of delay, beyond three years, from the date of execution of the same. This submission of the Counsel for the complainants, does not appear to be correct. Such a submission of the Counsel for the complainants, would have been considered to be correct, had the complainants, prayed for delivery of physical possession of the residential plot. In the instant case, as stated above, prayer for the refund of amount, aforesaid, was made by the complainants, as there was no progress, in development of the area, where the plot, in question, was allotted to them. This Clause could be invoked by the complainants, only, in the event, they had sought the relief of delivery of physical possession of the residential plot. The complainants, in our considered opinion, as stated above, are only entitled to the refund of amount, aforesaid, alongwith interest @12% P.A., which (interest) would take care of financial loss, suffered by them. As far as compensation for mental agony and physical harassment, is concerned, the complainants have been separately awarded the same, to the tune of Rs.two lacs, as held in paragraph 23 above. 
26.       No other point, was urged, by the Counsel for the parties.
27.        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.71,80,841/-, to the complainants, alongwith interest @ 12% per annum, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order.
    2. To pay compensation, in the sum of Rs.two lacs, for causing mental agony and physical harassment, to the complainants, within 45 days, from the date of receipt of a certified copy of this order.
    3. To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
    4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) with interest @15% P.A., instead of 12% P.A., from the respective dates of deposits, till realization and interest @12% P.A., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of costs, to the tune of Rs.20,000/.
28.        Certified Copies of this order be sent to the parties, free of charge.
29.       The file be consigned to Record Room, after completion

Pronounced.

02/03/2015

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

 [DEV RAJ]

MEMBER

Sd/-

 [PADMA PANDEY]

MEMBER

 

 

Rg.