Chandigarh

StateCommission

CC/160/2014

Sukhpal Singh Mangat - Complainant(s)

Versus

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

Tejinder Kaur Johal

02 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	160 of 2014
Date of Institution	:	19.11.2014
Date of Decision	:	02/03/2015

 

Sukhpal Singh Mangat son of Kuldeep Singh Mangat, Dental Care Centre, G.T. Road Doraha, Ludhiana (through Special Power of Attorney S.Surinder Singh Jawandah, resident of House No.1309, Sector 34, Chandigarh).

……Complainant

V e r s u s

1. M/s Emaar MGF Land Limited (EMAAR MGF), through its Chairman-cum-Managing Director/ Directors, S.C.O. No.120-122, 1^st Floor, Sector 17-C, Chandigarh.
2. M/s Emaar MGF Land Limited (EMAAR MGF), S.C.O. No.120-122, 1^st Floor, Sector 17-C, Chandigarh              

.... Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER

                PADMA PANDEY, MEMBER

               

Argued by: Ms.Tejinder Kaur Johal, Advocate for the complainant.

                 Sh.Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

            The facts, in brief, are that the Opposite Parties, floated a scheme, for the allotment of residential bungalows, in their upcoming project, under the name and style of “The Bungalows”, Sector 109, Mohali Hills, S.A.S. Nagar, Mohali, Punjab. In response to the advertisements, in the leading newspapers, given by the Opposite Parties, with regard to the salient features of the project aforesaid, the  complainant applied to them (Opposite Parties), vide Advance Registration of Expression of Interest/Application dated 21.08.2009, for the allotment of a bungalow, measuring 300 square yards, in the same (project), and paid a sum of Rs.5/- lacs, as registration amount, vide cheque No.305904 dated 21.08.2009, drawn on the Oriental Bank of Commerce.

2.       The complainant was allotted Bungalow No.TBM-300-AG-509, in “The Bungalows”, Sector 109, Mohali Hills, Mohali, Punjab, vide Provisional Allotment Letter dated 24.08.2009. The basic price of the said unit was to the tune of Rs.66,00,000/-. Apart from this amount, the complainant was also required to pay a sum of Rs.5,43,300/-, towards External Development Charges plus (+) Rs.7,26,000/- towards Preferential Location Charges plus (+) Rs.30000/- towards Interest Free Maintenance Security. As such, the complainant was required to pay Rs.78,99,300/-, as total sale consideration, of the said unit. The complainant opted for instalment payment plan.
3.       It was stated that the complainant availed of loan from the Housing Development Finance Corporation  Limited (HDFC), for payment of instalments, in respect of the said unit. Tripartite Agreement dated 25.11.2009 Annexure C-12, amongst the complainant, HDFC Limited and the Opposite Parties, was executed at Chandigarh. Thereafter, as per the instalment payment plan, the complainant, in all, deposited an amount of Rs.65,23,472/-, by 18.05.2011.
4.         It was  further stated that according to Clause 9.1 of Application dated 21.08.2009, Annexure C-2/1, the Opposite Parties were required to hand over physical possession of the unit, in question, in favour of the complainant, within a period of 24 months, but no later than 36 months, from the date of signing the same (application). It was further stated that, it was also mentioned in Clause 9.1 of the application dated 21.08.2009, Annexure C-2/1 that, in case, possession of the unit, in question, was delayed, on account of the reasons, beyond the control of the Opposite Parties, they were liable to pay penalty/compensation, to the allottee(s)/complainant, @Rs.50/- (Rupees fifty only), per square yard, per month, for the period of delay, beyond three years. It was further stated that the Opposite Parties were to deliver possession of the unit, in question, to the complainant, latest by 20.08.2012. However, the possession was not offered to the complainant, by 20.08.2012. It was further stated that, by 20.08.2012, even no development had been made, at the site, and, as such, the question of delivery of possession of the unit, in favour of the complainant, did not at all arise. On the other hand, it came to the knowledge of the complainant that the project, in question, where the unit, in question, was allotted, was under some litigation, on account of dispute with farmers of the locality. 
5.       It was further stated that the complainant approached the Opposite Parties, through every possible means, to know about the status of delivery of possession of the unit, in question, but they always lingered on the matter, on one pretext or the other. It was further stated that, left with no alternative, the complainant sought refund of the amount, deposited by him, but to no avail. It was further stated that, on the other hand, the Opposite Parties, offered relocation to some other Bungalow, in the same project, but that was merely a hollow promise, as the amenities in respect thereof were not even in existence at the site. 
6.       It was further stated that, on the other hand, vide letter dated 22.10.2014 Annexure C-20, another demand of Rs.18,75,271/-, under various heads, after a gap of five years, was made by the Opposite Parties. It was further stated that after receiving the said letter dated 22.10.2014 Annexure C-20, the complainant again visited the site, but was surprised to see that the location of the unit, in question, had been changed, and it was no more a preferential located one, for which he was charged extra amount of Rs.7,26,000/-, as PLC. Even there was no progress of construction at the site, and the basic amenities, like roads, sewerage, water,  and electricity, were not available. 
7.       It was further stated that the Opposite Parties, collected the huge hard earned money, from the general public, including the complainant, without any intention to develop the project, and delivery of possession of the units, to the allottees, by the promised date. It was further stated that various emails/letters were written to the Opposite Parties, to deliver possession of the said unit, and if they were not in a position to do it, to refund the amount deposited by the complainant, alongwith interest and compensation, but to no avail. It was further stated that the scheme, thus, floated by the Opposite Parties, was just a farce. It was further stated that the Opposite Parties, thus, cheated the complainant.
8.       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 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.65,23,472/-, alongwith interest @10.75%; pay compensation/penalty @Rs.50/- per square yard, per month, for the period of delay; compensation, to the tune of Rs.2 lacs, for mental agony, physical harassment, deficiency in rendering service, and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.20,000/-.
9.       The Opposite Parties put in appearance on 29.12.2014 and filed their written version, on 11.02.2015. In the written version, it was pleaded by the Opposite Parties, that since the complainant had concealed the relevant and material facts, from this Commission, the complaint was liable to be dismissed on this ground alone. It was further 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 this Commission has got no territorial and pecuniary Jurisdiction, to entertain and decide the instant complaint. It was further pleaded that the complainant intentionally did not produce copy of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, executed between the parties, in respect of the unit, in question, and, as such, was guilty of suppression of material facts. It was further pleaded that the complaint was not maintainable, as an arbitration clause, existed, in the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, and, in case of any dispute, the matter was to be referred to the Arbitration. It was further pleaded that since the allegations of fraud and cheating were leveled against the Opposite Parties, as such, the complainant was required to be relegated to the Civil Court, and the same could not be adjudicated by this Commission, the proceedings before which are summary in nature. It was further pleaded that the complaint was bad for non-joinder of HDFC Limited Bank, as necessary party, from which the complainant had obtained loan, in respect of  the payment of instalments towards the unit, in question.  The factum, with regard to the allotment of unit, in question, in favour of the complainant and deposit of the amount, mentioned in the complaint, towards the part price thereof, by him was admitted. It was stated that, as per Clause 8 of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, the Opposite Parties, were required to deliver possession of the unit, in question, to the complainant, within a period of 24 months, from the date of execution of the same (Agreement), failing which they were liable to pay penalty/compensation @Rs100/- (Rupees One Hundred only), per square yard, per month, for the period of delay. It was also admitted that possession of the unit, in question, could not be delivered, to the complainant, by the stipulated period, as mentioned in the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, i.e. by 15.11.2011. It was further stated that the complainant defaulted, in making payment of instalments, towards the price of the said unit. It was further stated that even a number of reminders were sent to the complainant, for making timely payment of instalments, towards the price of the said unit, but to no avail. It was further stated that, no doubt, there was some delay, in the delivery of possession of the unit, in question, yet, when the same was offered to the complainant, vide letter dated 22.10.2014, Annexure R-3, he refused to accept the same, and was adamant for the refund of amount deposited by him. It was further stated that all the necessary permissions were obtained by the Opposite Parties, from the Competent Authorities. It was further stated that even delayed compensation/ penalty, as per Clause 8 of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, to the tune of Rs.10,56,000/-,  had already been credited to the account of the complainant, maintained by the Opposite Parties, for the period of delay. It was denied that there was any change of location of the unit, in question. It was further stated that the amount demanded by the Opposite Parties, from the complainant, vide letter dated 22.10.2014, was legally due against him. It was further stated that, as far as the payment of club membership charges, was concerned, the same was optional, in the event, the same (membership) was availed of by the complainant. It was further stated that since the possession had already been offered to the complainant; the amenities were complete, at the site  in terms of the Agreement; penalty as per Clause 8 of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, for the period of delay, had also been credited to his account, maintained by the Opposite Parties, and, in case, he (complainant) still wanted refund, the same would amount to surrender of the unit, and attract forfeiture charges, as per Clauses 2(f) (iii) and (iv), 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.
10.       In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
11.       The complainant, in support of the averments contained in the complaint, submitted the affidavit of Shri Surinder Singh Jawandah, his Special Power of Attorney, 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, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act,  a  consumer  complaint could be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, placed on record by the Opposite Parties, reveals that the same was executed, between  the  parties, at Chandigarh, as is evident from page 89 of the file. No doubt, on the said page, the word Chandigarh was inserted in the said Agreement, after cutting the word Doraha, and also the date of execution has been inserted as 16.11.2009 after cutting the date 20.10.2009, yet, since the same (this Agreement) was in the custody of the Opposite Parties  only, and no specific allegation of forgery, in respect of the same has been levelled against the complainant, it means that the same (Agreement) was executed at Chandigarh. Even the Tripartite Agreement Annexure C-12 was executed amongst the complainant, Opposite Parties, and the HDFC Limited at Chandigarh. It means that a part of cause of action arose to the complainant, 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, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here, that it was the residential Bungalow, which was allotted, in favour of the complainant. The mere objection of the Opposite Parties that since perusal of an email sent by the complainant, made it clear that he is an NRI, as a result whereof, he executed the Special Power of Attorney, in favour of his father, it means that he (complainant) purchased the unit, in question, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in the prices, does not carry any weight and the same is liable to be rejected. The Opposite Parties, failed to produce, on record, any cogent and convincing evidence, in support of their contention. The mere fact that it was a residential Bungalow, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. Not only this, it was clearly averred by the complainant, in paragraph no.2 of the complaint, that he planned to settle near Chandigarh, for better education and future of his children, as a result whereof, he purchased the said unit, in the project of the Opposite Parties. On the other hand, 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 unit, 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. Even otherwise, if it is assumed, for the sake of arguments, that the complainant is an NRI, then also, no law of the land, debars an 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 the allotment of a residential Bungalow, 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.     
16.       The next question, that falls for consideration, is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the sale consideration, including all, of the unit, in question,  was   Rs.78,99,300/-. The complainant has sought  refund of the amount of Rs.65,23,472/-, alongwith interest @10.75% P.A., from the respective dates of deposits; penalty @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay; compensation to the tune of Rs.2 lacs, for mental agony, physical harassment, deficiency in rendering service, and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.20,000/-. The aggregate value of the reliefs sought by the complainant, in the complaint, [excluding the interest claimed @10.75% P.A. aforesaid], came to be around Rs.78,53,472/- 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.
17.       The next question, that arises for consideration, is, as to whether, interest @10.75% P.A., claimed by the complainant, 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”.

18.       The observations made, in the aforesaid case, are fully applicable, to the facts of the instant case. In the instant complaint, interest @10.75% P.A., claimed by the complainant, 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.
19.       The next question, that falls for consideration, is, as to whether, the Consumer Complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the reason, that an arbitration Clause existed, in Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-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 arbitration Clause, in the Bungalows Buyer's Agreement dated 16.11.2009, Annexure R-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

20.       The next question, that falls for consideration, is, as to whether, complicated and complex questions of fact and law are involved, in this complaint, on account of the allegation of cheating, having been levelled by the complainant, the adjudication whereof, is not possible, by this Commission, proceedings before which are summary, in nature. It may be stated here, that no complicated and complex questions of fact and law, are involved, in this complaint, the adjudication whereof is not possible by this Commission, though the proceedings before it are summary, in nature. Mere allegation in the complaint that the Opposite Parties cheated the complainant, by not delivering possession of the unit, in question, by the stipulated date, has no legs to stand without substantiation thereof, through cogent and convincing evidence. The complainant claimed that he purchased the said unit and deposited a sum of Rs.65,23,472/- towards the part price thereof, but was not handed over possession of the same, by the stipulated date i.e. on 16.11.2011. The Opposite Parties, admitted that the aforesaid amount was deposited towards the part price of the Bungalow. It was admitted that there was delay of about 3 years, in the offer of delivery of possession of the said unit, which was finally made by them, vide letter dated 22.10.2014 Annexure R-3. It is a well settled principle of law, that the parties are governed by the terms and conditions, contained in the Agreement. In the Agreement, it was clearly stated, as to what would be the consequences, if delivery of possession of the same (unit), was not made by the stipulated date.  Under these circumstances, by no stretch of imagination, it could be said that complicated and complex questions of fact and law, are involved, in the instant complaint, which require examination and cross-examination of the witnesses, and analysis of voluminous evidence. In J.J. Merchant (Dr.) V. Shrinath Chaturvedi, IV (2002) SLT 714 =III (2002) CPJ 8 (SC) =2002 CTJ 757 (SC) (CP), the Hon'ble Supreme Court, held as under:-

 

“This submission also requires to be rejected because   under   the   Act,  for  summary or speedy  trial,   exhaustive  procedure inconformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers, and that should not be curtailed, on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done, when some questions of fact are required to be dealt with or decided. The Act provides sufficient safeguards”.

21.       In CCI Chambers Coop. Hsg. Society Ltd. V. Development Credit Bank Ltd. V (2003) SLT 185=III (2003) CPJ 9 (SC)=2003 CTJ 84 (SC) (CP), the Hon’ble Supreme Court also held as under:-

“It cannot be denied that Foras at the National Level, the State level and at the District level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the Fora established under the Act. These Foras have been established and conferred with the jurisdiction in addition to the conventional Courts.   The   principal object sought to be achieved by establishing such Foras is to relieve the conventional Courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the complicated and detailed procedure, which at times is accompanied by technicalities. Merely because reading of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved”.

 

22.       The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The submission of the Counsel for the Opposite Parties, in their written version, that since the complicated and complex questions of fact and law are involved, in this complaint, the adjudication whereof is not possible, by this Commission, proceedings before which are summary, in nature,  thus, being devoid of merit, must fail, and the same stands rejected.
23.       The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, in question, was to be given to the complainant. The unit, in question, was allotted to the complainant, on 24.08.2009, vide letter of allotment Annexure C-3. The Bungalows Buyer's Agreement Annexure R-1,  was executed, between the parties, on 16.11.2009. According to Clause 8 of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1,  the Opposite Parties, were liable to handover physical possession of the residential Bungalow, in favour of the complainants, within a period of 24 months, from the date of execution of the same (Agreement). It means that the Opposite Parties were  liable to deliver possession of the residential unit to the complainants at the latest by 15.11.2011. By not delivering the possession by the stipulated date, the Opposite Parties were not only deficient in rendering service, but also indulged into unfair trade practice.
24.       The next question, that falls for consideration, is, as to whether, possession of the unit, in question, was actually offered by the Opposite Parties, to the complainant. It is an admitted fact that possession of the unit, in question, was offered to the complainant, vide letter dated 22.10.2014, Annexure R-3, whereby it was clearly intimated to him, that the same (possession of the unit), was ready for delivery, subject to making the pending payments, mentioned therein. Thus, it is held that possession of the Bungalow, in question, which was allotted to the complainant, was for the first time genuinely offered to him (complainant), on 22.10.2014.
25.       The next question, that falls for consideration, is, as to whether, all the amenities at the site, as per Clause 23 of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, where the unit, in question, was allotted to the complainant were complete, or not, and that the complainant was ready to take the possession thereof or not, when it was offered to him, vide letter dated 22.10.2014 Annexure R-3. As stated above, possession of the unit, in question, was offered to the complainant, vide letter dated 22.10.2014 Annexure R-3, i.e. before filing the complaint and demand of Rs.18,75,271/-, was also made from him. Even, Annexure R-2 dated 30.09.2013, is a copy of the occupancy certificate, in respect of the unit, in question, granted by the Greater Mohali Area and Development Authority (GMADA), the Competent Authority. It means that the Competent Authority granted occupation certificate Annexure R-2, in respect of the bungalow, in question, only after verifying that all the amenities, which were promised to be provided by the Opposite Parties, as per Clause 23 of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, were in existence at the site.
26.       No doubt, the complainant, in his complaint, stated that the amenities where the unit, in question, was located, were not complete, as per Clause 23 of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, and, as such, the offer of possession vide letter dated 22.10.2014 Annexure R-3, was not accepted by him. He also placed on record the photographs Annexure C-A (colly.), in support of his averment. It may be stated here, that these photographs cannot be said to be depicting the correct position, at the site. The mere fact that some grass was standing near the bungalow, in question, did not mean that the amenities as per Clause 23 of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, were not provided by the Opposite Parties. There is nothing, on the record, as to on which date, these photographs were clicked. On the other hand, the Opposite Parties, categorically denied that there was no development, in the area, where the unit of the complainant was located. No expert evidence, was produced by the complainant, to the effect that the amenities, which were promised by the Opposite Parties, as per Clause 23 of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, were not in existence, at the site. In the absence of any expert evidence, in the shape of report(s) of the engineer(s)/ architect(s), no reliance on these photographs can be placed. It is, therefore, held that the version of the Opposite Parties, duly supported by occupancy certificate, issued by the Greater Mohali Area Development Area (GMADA) that they were in possession of all the requisite permissions and the amenities, as promised, in the Agreement, were available at the site, and as such, the offer made to the complainant, vide letter dated 22.10.2014 Annexure R-3, was a genuine offer is correct. It was, thus, abundantly proved that the complainant was only interested in the refund of amount deposited, on the false pretext of no development at the site and non-existence of the requisite amenities. The complainant, thus, avoided the taking of possession of the unit, in question. This amounted to the cancellation of allotment, and surrender of the unit, on the part of the complainant.
27.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of amount, if so, to what extent.  Clause 2(f) (iii) of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1,  reads as under:-

 

“Surrender/Cancellation/Forfeiture; To ensure fulfillment, by the Allottee of the terms and conditions as contained in the Application form and as may be contained in the present Buyer's Agreement. The following shall apply:-

1. ………………..
2. ……………….
3. Thereafter, once the Applicant has chosen to sign the Buyer's Agreement, and at a later stage, he/she does not fulfill the terms and conditions of the Buyer's Agreement or cancels the allotment or surrenders the Unit allotted to him/her, charges at the rate of 10% on the sale price of the Unit shall be leviable and the Company shall be entitled to adjust the same from the amount deposited by the Applicant with the Company alongwith the interest paid, due or payable.
4. …………………….”

28.       Perusal of the afore-extracted Clause 2(f)(iii) of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, makes it clear, that once the allottee chose to sign the Buyer's Agreement, and at a later stage, he/she cancelled the allotment or surrendered the unit allotted to him/her, charges at the rate of 10% on the sale price of the same were leviable and the Company was entitled to adjust the same from the amount deposited by him,  alongwith the interest paid, due or payable. As stated above, the complainant was not interested in taking possession of the unit, in question, despite the fact that the same was offered to him, vide letter dated 22.10.2014 Annexure R-3, before filing the complaint, and sought refund of the amount. Thus, the Agreement between the parties, stood rescinded. This amounted to surrender of the unit, in question. Under these circumstances, the complainant could not be held entitled to the refund of entire amount, deposited by him. As per Clause 2(f)(iii), extracted above, the Opposite Parties, were entitled to forfeit 10% of the sale price, from the amount, deposited by the complainant, which comes to be Rs.7,89,930/- (i.e. Rs.78,99,300/- being the sale price, minus (-) 10% of the same, as per Clause 2(a) of the Agreement). It is, therefore, held that the complainant is entitled to the refund of amount, to the tune of Rs.57,33,542/- [i.e. Rs.65,23,472/- (amount paid) minus (-) Rs.7,89,930/- being 10% of the price of Rs.78,99,300/-]. By not refunding this amount, as per the aforesaid Clause of the Agreement, when the complainant sought cancellation of the unit, and requested for refund, the Opposite Parties, were certainly deficient, in rendering service, thereby causing financial loss to him.
29.       The next question, that falls for consideration, is, as to whether, the complainant is, entitled to the refund of the said amount of Rs.57,33,542/-, with interest. It may be stated here, that ‘Interest’ in general terms is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another.  In its narrow sense, ‘interest’ is understood to mean the amount, which one has contracted to pay for use of borrowed money.  In whatever category ‘interest’ in a particular case may be put, it is a consideration, paid either for the use of money, or for forbearance in demanding it, after it has fallen due, and, thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by the parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable. The interest is granted, for improper and illegal retention of the amount deposited by the complainant, with the Opposite Parties, by the latter, for a long time. The possession was promised to be delivered, as per the Agreement, by 15.11.2011. It was, on the other hand, offered vide letter dated 22.10.2014 i.e. after about three years of the promised date. The amount deposited by the complainant came to be around 80% of the price of the unit from 2009 onwards was utilized by the Opposite Parties for a long number of years, by investing the same in their building activities, without rendering any service to him. The complainant was, thus, illegally and improperly deprived of the use of money deposited with the Opposite Parties, for a sufficient longer period. It has been held above that since the complainant failed to accept offer of possession, sent to him vide letter dated 22.10.2014, Annexure C-20, the contract stood rescinded, and the Opposite Parties were entitled to forfeit 10% of the sale price, which constituted the earnest money. The complainant, thus, stood penalized, by invoking the forfeiture Clause, on account of non-acceptance of offer of possession by him, without any rhyme or reason. He, thus, cannot be penalized twice, by disallowing interest to him, at a reasonable rate, on the amount to which he is entitled. The equities are required to be balanced, by not enriching one party, at the cost of other.  For the financial loss, which the complainant suffered, interest @ 10.75%p.a., as prayed for by him, on the amount of Rs.57,33,542/-, if granted, could be said to be just, fair and reasonable. Thus, in our considered opinion, the complainant is entitled to the refund of Rs.57,33,542/- calculated, in the manner, referred to above, alongwith interest @10.75% P.A., as prayed for, by him, from the respective dates of deposit.. 
30.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, or not. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainants. The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award value of the goods or services and compensation, it has to be construed widely enabling the Consumer Foras, to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainants. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65.  In the instant case, after making payment of Rs.65,23,472/- i.e. around 80%, towards the price of the unit, possession thereof, was not offered to the complainant, by the stipulated date, but was offered after a delay of about 3 years, as a result whereof, he cancelled the allotment of unit and sought refund of the amount deposited by him,  but the Opposite Parties failed to do so, after deducting 10% of the sale price, as per Clause 2 (f)(iii) of the Bungalows Buyer's Agreement dated 16.11.2009 Annexure R-1, thereby causing mental agony, physical harassment and injustice to him. On account of this act of the Opposite Parties, the complainant was dragged into unnecessary litigation. The complainant, is, thus, entitled to compensation, to the tune of Rs.1.50 lacs, on account of this reason.
31.       No other point, was urged, by the Counsel for the parties.
32.        For the reasons recorded above, the complaint is partly accepted, with costs, and the Opposite Parties are jointly and severally held liable and directed in the following manner:-

 

(i).     To refund the amount of Rs.57,33,542/- [i.e. Rs.65,23,472/- (amount paid) minus (-) Rs.7,89,930/- being 10% of the price of Rs.78,99,300/-], to the complainant, alongwith interest @ 10.75% 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.

 

(ii).     To pay compensation, in the sum of Rs. 1.5 lacs (one lac and fifty thousand only), for causing mental agony, physical harassment and injustice, to the complainant, by not refunding the amount of Rs.57,33,542/-, when asked for by him,  within 45 days, from the date of receipt of a certified copy of this order.

(iii).     To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.

 

(iv).     Housing Development Finance Corporation Limited (HDFC) Sector 8-C, Chandigarh, shall have the first charge, on the amount, to be refunded to the complainant, by the Opposite Parties, to the extent the same (amount) is due to it, against him (complainant).

 

5.       In case, the payment of amounts,    mentioned in Clauses (i) and (ii), is not made,    within the stipulated period, then the Opposite    Parties, shall be liable to pay the amount mentioned in Clause (i) with interest @12%      P.A., instead of 10.75% 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/-.

33.       Certified Copies of this order be sent to the parties, free of charge.
34.       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