Chandigarh

StateCommission

CC/115/2016

Varjinder Kaur - Complainant(s)

Versus

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

Munish Goel, Adv.

03 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	115 of 2016
Date of Institution	:	28.03.2016
Date of Decision	:	03.10.2016

 

1. Varjinder Kaur w/o Jinder Paul Singh r/o H.No.2002, Phase 7, SAS Nagar, Mohali.
2. Gagandeep Kaur d/o Jinder Paul Singh r/o H.No.2002, Phase 7, SAS Nagar, Mohali.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Limited, 17-B, MGF, Asaf Ali Road, New Delhi – 110001 through its Director/Managing Director/Authorized Signatory.
2. M/s Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Director/Managing Director/Authorized Signatory.
3. M/s Emaar MGF Land Limited, SCO 120-122, 1^st Floor, Sector 17-C, Chandigarh, through its Director/Managing Director/Authorized Signatory.  

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Munish Goel, Advocate for the complainants.

Sh.  Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that complainants No.1 and 2 are mother & daughter and they were allured by the representative of the Opposite Parties. The Opposite Parties advised the complainants to purchase units being interconnected with each other starting from basement/ground floor, first floor, second floor and third floor. Accordingly, the complainants purchased four units from the Opposite Parties but later on, they realized that they would not be in a position to run four units independently and same would require huge investment, as such, they had to forego     three     units      and requested them to adjust the amount already paid for three units only in one unit No.70 on First
Floor having aprox. super area of 1477 sq. ft. with sole intention to earn their livelihood by means of self employment. The Opposite Parties informed that total sale price of the said unit at first floor was Rs.59,92,854/-. Thereafter, the Opposite Parties allotted unit No.70 on floor FF having approx. super area of 1477 vide allotment letter dated 30.06.2008. It was mentioned in the allotment letter that the Opposite Parties received payment of Rs.17,70,000/- vide cheque and further stated that the next installment of Rs.6,46,162/- would be due within three months from the date of booking but the same was not payable, as the complainants had already given up three units and amount of the said units were to be adjusted in unit No.70 at first floor. It was stated that the complainants kept on waiting to receive the terms and conditions of the allotment but the same were not provided by the Opposite Parties. It was further stated that complainant No.1 wrote letters dated 05.01.2011 and 04.02.2011 (Annexure C-3)  to the Opposite Parties to adjust amount lying with them for three units in one unit i.e. first floor of unit No.70. Thereafter, the complainants went to the Opposite Parties and demanded fresh allotment letter and they were told to make the payment of Rs.12 lacs. Accordingly, the complainants further deposited Rs.4,90,000/- on 28.03.2011 vide receipt (Annexure C-4), Rs.4,90,000/- vide receipt (Annexure C-5) and Rs.2,20,000/- vide receipt (Annexure C-6).   It was further stated that the Opposite Parties issued letter dated 24.05.2011 (Annexure C-7) and agreed to adjust the amount paid in other units in unit No. CPM 70-A4-F0170 at first floor and they further waived off 100% delayed interest charged on the said unit as on date. It was further stated that the complainants received letter dated 19.08.2011 from the Opposite Parties to make payment of Rs.5,75,426/- and, as such, when they went to deposit the same, the Opposite Parties demanded Rs.6,56,261/-, as such, the same was deposited on 31.10.2011. Copies of both the letters dated 19.08.2011 and 31.10.2011 are at Annexure C-8 and C-9. It was further stated that the Opposite Parties came up with Buyer’s Agreement in January, 2012, which was signed on 10.01.2012 (Annexure C-9/A), vide which, total sale price of the unit was Rs.66,22,794.18 instead of Rs.59,92,854/-. It was further stated that as per Clause 22.1 of the Agreement, the Opposite Parties agreed to give physical possession within 36 months from the date of signing of the Agreement and, as such, they were bound to give possession by 09.01.2015 but they neither delivered the possession of the unit within the stipulated period nor paid Rs.50/- per sq. ft. per month of the super area to the complainants, as per Clause 24.1 of the Agreement. It was further stated that the complainants kept on asking the Opposite Parties qua delivery of possession of the unit since 2013 but they did not reply till April, 2015, as they were bound to give physical possession upto 09.01.2015 but they failed to deliver the same. It was further stated that the complainants were not bound to take possession after 09.01.2015 and, as such, they sought refund but the Opposite Parties instead of refunding the amount alongwith interest and compensation, issued letter dated 24.04.2015 (Annexure C-12) offering possession to the complainants i.e. after a delay of 137 days. It was further stated that the Opposite Parties unilaterally reduced the size of area and without informing the complainants about reduction of size at any stage and it came to the knowledge of the complainants only after receipt of letter dated 24.04.2015. Thereafter, the complainants went to the Opposite Parties in May, 2015 and submitted their objection with regard to the size of he said unit and also their failure, to offer possession by 10.01.2015. It was further stated that the complainants duly sought occupation certificate but the same was not produced by the Opposite Parties. It was further stated that the Opposite Parties further claimed Rs.14,27,547/- from the complainants vide letter dated 24.04.2015. It was further stated  that the complainants made the total payment of Rs.63,06,261/-, out of the total principal amount of Rs.63,06,268/-. It was further stated that the Opposite Parties inspite of waiver of 100% interest, still levied interest on delayed payment.  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 complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.           The Opposite Parties, in their written version, have taken objection regarding arbitration clause in the Agreement, and also they separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement.  It was stated that this Commission has got no territorial jurisdiction to entertain and decide the complaint as the property is situated at Mohali, Punjab. It was further stated that the complainants did not fall within the definition of “Consumer” as they purchased the commercial property. It was further stated that the total price of the first floor was Rs.66,37,564/- as per the Agreement. It was further stated that the area and price of the unit was tentative and subject to change till Occupation Certificate was received. It was further stated that the Opposite Parties issued the provisional allotment letter dated 30.06.2008, in which, total sale price (excluding service tax) was mentioned as Rs.59,92,854/-. It was further stated that the complainants are willful defaulters and had not made the due payments as per the payment plan. It was further stated that the complainants themselves admitted that they only requested  for cancellation and adjustment in 2011 but they stopped making payments in 2008. It was further stated that the complainants were sent the Agreements in 2008 and then in 2010 also, which was received by them, but they did not send the signed copies of the Buyer Agreement. Copies of the letters/reminders sent to the complainants is at Annexure R-2. It was further stated that as per the request of the complainants, three units were cancelled and adjusted the money paid by them, without deduction of any amount and moreover also waived the delayed interest due towards the complainants. It was further stated that possession of the unit was to be delivered by the Opposite Parties within 36 months and three months grace period i.e. latest by 09.04.2015. It was further stated that the intimation of possession letter was issued to the complainants on 24.04.2015 and, as such, delay was only of two weeks. It was further stated that the complainants are not entitled to claim refund, after possession of the shop has been offered to them. It was further stated that in case of seeking of refund by the complainants, the forfeiture clause would come into operation, as per the Agreement. The Company has issued the intimation of possession on receipt of Occupation Certificate (Annexure R-4). It was admitted regarding receipt of the amount of Rs.63,06,261/- against the shop/unit. It was further stated that the delayed payment charges were waived off only against the shops/units (3), which were cancelled. It was further stated that the Opposite Parties offered possession to the complainants within agreed timeline. 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.

3.           The complainants filed counter affidavit of Sh.Varjinder Kaur, complainant No.1 to the written statement of the Opposite Parties, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

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

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

6.           Admittedly, the complainants purchased four units from the Opposite Parties but thereafter, they had to forego three units and requested them to adjust the amount already paid for three units only in one unit No.70 on first floor, which was adjusted by the Opposite Parties vide letter dated 24.05.2011 (Annexure C-7). It is also the admitted fact that Central Plaza Premises Buyer’s Agreement was executed between the parties on 10.01.2012. It is also the admitted fact that the complainants paid the total amount of Rs.63,06,261/- in respect of the unit, in question, as is evident from the statement of account (at page No.91 of the file). It is also the admitted fact that intimation of possession was given to the complainants vide letter dated 24.04.2015 (Annexure C-12).  

7.           The first question that falls for consideration is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Parties, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.” 

            In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Parties, stands rejected.

8.           Another frivolous objection was taken by the Opposite Parties, by stating that the property, in question, is situated at Mohali, Punjab,  as such, this Commission has no territorial Jurisdiction to entertain and decide the complaint. In the instant case,  Agreement was executed between the parties at Chandigarh on  10.01.2012 (Annexure C-9/A). Not only this, perusal of record reveals that acknowledgment-cum-receipts as well as letters (Annexures C-4 to C-9), letter dated 12.11.2013 (Annexure C-11) and intimation of possession letter dated 24.04.2015 (Annexure C-12), were sent by Chandigarh office of the Opposite Parties, as the same had the address “Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh-160017”. It means that a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Parties, also stands rejected.

9.           The dispute is as to whether, the unit purchased in the project of the Opposite Parties by the complainants would fall within the definition of consumer complaint. The said issue came up for consideration, before this Commission, in a case titled as M/s Chandigarh Overseas Private Limited Vs. Easow Mathew, First Appeal No.284 of 2015, decided on 25.01.2016. Taking note of similar contentions, this Commission, gave findings as under:-

6. On interpreting provisions of application form for allotment/agreements, and other documents on record, the Forum came to the conclusion that construction at the project, was to be completed by 18.01.2010, however, it was not done and possession of the unit, was not delivered, as per promise made by the opposite parties. Defence taken by the appellant that the respondent was not a consumer was righty rejected, by observing as under:-

“As we have already observed, the complainant has specifically pleaded in his complaint that he wanted to settle a business for himself for earning his livelihood and to become an independent business owner, he agreed to purchase the said unit of 100 sq. ft. in Design Studio No.12.  The complainant has also pleaded that he is a consumer as per the provisions of the Consumer Protection Act as the said unit was purchased by him for earning his livelihood.  The allegations of the complainant are supported by his own affidavit.  The OPs have not produced any such evidence that the complainant is a property dealer dealing in the sale and purchase of real estate. The total area of the unit purchased by the complainant from the OPs is only 100 sq. ft. which is for small investors.  Since the complainant wanted to settle a business for himself for earning his livelihood, it cannot be inferred that the said unit was purchased by him with the sole motive of earning profits.  As far as the contention of the learned counsel for the OPs that the complainant is not qualified to run his unit in the project is concerned, it was the duty of the OPs to verify the same before accepting the application for allotment of the unit whether he was eligible under “Small Investor Scheme” or not.  At this stage, such an objection is not tenable.  In Arun Mandhana Vs. Chandigarh Overseas Pvt. Ltd. & Anr., Consumer Complaint No.19 of 2012 decided on 12.10.2012 and Ruchira V. Arora Vs. M/s Chandigarh Overseas Private Limited, First Appeal No.8 of 2013 decided on 1.3.2013, our own Hon’ble State Commission in somewhat similar circumstances in the complaints against the same very OPs held that the size of the studio was small and the sale price of the said studio was also not too high, therefore, it was established that the complainant never intended to run commercial activity in the studio on a large scale with a view to earn huge profits and he fell within the definition of consumer.”

7.         Contention of Counsel for the appellant that the respondent was not a consumer also needs to be rejected, taking note of ratio of the judgement of the National Commission, titled as Kavit Ahuja Vs. Shipra Estate Limited and Jai Krishna Estate Developers Private Limited, Consumer Complaint No.137 of 2010, decided on 12.02.2015. Similar objection was raised, in that case. The National Commission while interpreting the provisions of Section 2 (1) (d) of the Act, held as under:-

“Going by the Dictionary meaning of the expression ‘Commerce’ as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged.  In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services.  It would ordinarily include activities such as manufacturing, trading or rendering services.  In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses.  If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose.  A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment.  He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc.  Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him.  That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).

Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.

8.         By noting ratio of the judgment of the Hon’ble Supreme Court of India, titled as Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, it was stated by the National Commission in that case that the word commercial purpose is a question of fact to be decided in the facts of each case. It is not value of the goods, which matters, but the purpose, for which the goods bought are put to, needs to be noted. Same would be clearly applicable to, for hiring or availing services. In the present case,  application to purchase a unit, was moved in the year 2006. Out of Rs.5 lacs, an amount of Rs.4,75,000/- stood paid, for purchase of the built-up unit. Rest of the amount was to be paid, at the time of possession of the unit. In the year 2009, when completion of the project was not visible, under above circumstances, when buyback offer was made by the appellant on 22.06.2009, may be on account of frustration in not getting possession of the unit, in time, it was accepted by the respondent, on 04.08.2009 vide letter Annexure C-7. On account of that act, the respondent cannot be excluded from the definition of a consumer. Even otherwise, as has been observed by the National Commission, in the case of Kavit Ahuja’s case (supra), that surplus funds can be invested, in such a manner, in purchasing property/unit(s), to earn better returns, in future and unless there is evidence on record that the purchaser thereof, was indulging into sale and purchase of unit(s), on regular basis, he would fall within the definition of a consumer.”

 

In the instant case, no doubt, it is true that initially, the complainants purchased four units from the Opposite Parties but later on, they realized that they would not be in a position to run four units independently and same would require huge investment and, as such, they had to forego three units and now the dispute is with regard to one unit i.e. unit No.70 on the first floor only. The complainants have specifically stated in their complaint as well as in the rejoinder that they are mother and daughter and complainant No.2 had done MBA from DE MONTFORT University, UK in the year 2007 and thereafter, in lieu of earning livelihood by means of self employment thought of purchasing of shop for doing consultancy work in the field of Finance and International Trade. Nothing contrary has been shown, by the Opposite Parties, in support of their contention.

10.          The next question, that falls for consideration, is, as to whether,  offer of possession made by the Opposite Parties, to the complainants, vide letter dated 24.04.2015  (Annexure C-12), in respect of unit bearing No.CPM 70-A4-F0170 situated at the project “Central Plaza at Mohali Hills”, could be said to be paper possession or not. The complainants have basically challenged the offer of possession given by the Opposite Parties vide letter dated 24.04.2015, on 3 grounds, the first one being that the possession so offered is only a paper possession and not a genuine one. The Opposite Parties have placed on record Partial Occupation Certificate dated 18.11.2014 issued by GMADA, granting permission for occupancy or use of Basement-I, Basement-II, Ground Floor, First Floor, Second Floor & Third Floor only, which is much before the offer of possession. Therefore, the contention of the complainant that offer of possession was only a paper possession does not warrant to be accepted in toto.

11.          The other contention of the complainants that the Opposite Parties have not waived interest on account of delayed payment, which is a deficient act on their part. However, the Opposite Parties have stated that the delayed payment charges were waived off only against the shops/units (3) which were cancelled and not in the present unit. The fact that delayed payment charges were waived of in respect of three units only, as is evident from the contents of letter dated 24.05.2011 (Annexure C-7). The relevant part of it is extracted hereunder :-

“x x x x x x x

It is further communicated that from the date of full and final settlement you will have no interest of any nature whatsoever in the allotment made vide letters dated 30^th June 2008 and the Company shall be free to deal with the Unit to any manner at its sole discretion as it may deem fit as if the Unit was never allotted to you.

X xxx x x xx x

We also confirm that as an exception, we have waived 100% delayed interest charges on your units as on date. The aforesaid waiver granted by the Company is a one off case and shall not be construed to be a precedent and/or binding on the Company to exercise such discretion subsequently again and/or in case of any other allottee(s).”   

12.          The next question, that falls for consideration, is, as to within which period, the delivery of possession of the shop/unit, was to be given to the complainants. In this regard Clause 22.1 of the  Central Plaza Premises Buyer’s Agreement (Annexure C-9/A) reads thus :-

“22.1 Subject to Force Majeure conditions and reasons beyond the control of the Developer and subject to the Allottee not being in default of any of the provisions of this Agreement and having complied with all provisions, formalities, documentation etc. and the terms and conditions of this Agreement, the Developer proposes to hand over the possession of the premises within a period of thirty-six (36) months from the date of signing of this Agreement. The Allottee agrees and understands that the Developer shall be entitled to a grace period of ninety (90) days, after the expiry of thirty-six (36) months for applying and obtaining the occupation certificate in respect of the CENTRAL PLAZA.”

 

In view of the afore-extracted clause, it is clear that possession of the unit was to be delivered to the complainants within a maximum period of 39 months (36 months + 3 months grace period) from the date of signing of the Agreement. In the instant case, the Agreement was signed by the complainants on 10.01.2012 and, as such, possession was to be delivered latest by 09.04.2015 including the grace period of 3 months and not more than that.  However, the Opposite Parties offered possession to the complainants vide letter dated 24.04.2015 (Annexure C-12) i.e. after a delay of only two weeks, after Partial Occupation Certificate was issued to the Opposite Parties vide memo dated 18.11.2014.

13.          The next question that falls for consideration, is, as to whether, the complainants were bound to accept offer of possession, in respect of the unit, in question, when the same was offered to them vide intimation of possession letter dated 24.04.2015 (Annexure C-12), i.e. after a delay of only two weeks. Since, in the instant case, the Agreement was executed between the parties on 10.01.2012 and the Opposite Parties were bound to give possession within a maximum period of 39 months (36 months + 3 months grace period), which expired on 09.04.2015 after receipt of Partial Occupation Certificate vide memo dated 18.11.2014. Thus, the delay of two weeks in offering possession is not very significant.

14.          The next question is to be seen whether at the time of change of area, the intimation was given to the complainants. The answer, to this, question is in the negative. Vide intimation of possession of the unit bearing No.   CPM 70-A4-F0170 dated 24.04.2015 (Annexure C-12) the Opposite Parties changed the area of the unit and super area of the captioned unit now stands to 1229.66 sq. ft. (114.24 sq. mtrs.) from the earlier area of 1477 sq. ft. (137.22 sq. mtr.). Even the complainants in their complaint have stated that the Opposite Parties not even informed the complainants about reduction of size at any stage and it came to the knowledge of the complainants only after receipt of letter dated 24.04.2015. Moreover, the complainants have drawn our attention to Clause 18.1 of the Agreement. The relevant portion of the aforesaid clause reads thus :-

“18.1 In the event of any alteration/modification resulting in more than 10% (ten percent) increase or decrease in Super Area of the premises, the Developer shall in its sole opinion, any time prior to or upon the grant of occupation certificate, intimate the allottee in writing of such increase or decrease in Super Area thereof and the resultant change, if any, in the Sale Price of the premises. X x x x x x x x xx x x x.”

In view of the aforesaid clause, it is clearly proved that it was the bounden duty of the Opposite Parties to intimate the complainants regarding increase or decrease in the super area but they did not inform to the complainants till the receipt of letter of intimation of possession dated 24.04.2015, which amounted to deficiency in service on their part. Since the consent of the complainants for the decrease in the area in terms of Clause 18.1, decrease being more than 10% was not obtained, the complainants are therefore within their right to decline the possession.  

15.           The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.63,06,261/-, deposited by them. It is an admitted fact that the  Opposite Parties offered possession on 24.04.2015 after obtaining Partial Occupation Certificate in November, 2014 and the Occupation Certificate was issued by GMADA only vide memo dated 22.03.2016, which proves that there were definitely certain loose ends when possession was offered. So, the complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the  Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

16.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is not in dispute that an amount of Rs.63,06,261/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. The  Opposite Parties were charging rate of simple interest @15% p.a., as per Clause 21.1 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. This Commission has been granting refund in such cases by granting interest @12% p.a./15% p.a. In the facts and circumstances of the case, the  complainants are held entitled to get refund of the amount deposited by them, to the tune of Rs.63,06,261/- alongwith simple interest @9% p.a., from the respective dates of deposits till realization, since in this case the delay in offering possession was only two weeks, as per the Agreement. 

17.           As far as the plea taken by the Counsel for the Opposite Parties, regarding forfeiture clause is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that they were ready with possession of the unit, to be delivered to the complainants, complete in all respects, as per terms and conditions contained in the Agreement, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the Opposite Parties, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of some amount, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.

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

19.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed, as under:-

1. To  refund   the  amount of Rs.63,06,261/-, to  the complainants, alongwith simple interest @ 9% p.a. (simple), from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and harassment, to the complainants, within 45 days, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with simple interest @12% p.a., instead of simple interest @ 9% p.a., from the respective dates of deposits, till realization, and interest @9% p.a. (simple), on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

20.          However, it is made clear that, if the  complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants.

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

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

Pronounced.

October 3, 2016.                                     Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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