Chandigarh

StateCommission

CC/355/2016

Vikas Nagpal - Complainant(s)

Versus

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

Arihant Goyal , Adv.

29 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                U.T., CHANDIGARH

 

Complaint case No.	:	355 of 2016
Date of Institution	:	15.07.2016
Date of Decision	:	29.03.2017

 

1. Vikas Nagpal S/o Sh. Ved Prakash Nagpal r/o H.No. 5850, Manimajra Housing Complex, Manimajra.
2. Smt. Swarn Devi W/o Sh. Ved Prakash Nagpal r/o H.No.5850, Manimajra Housing Complex, Manimajra.

                                                        ……Complainants

                        V e r s u s

1. M/s Emaar MGF Land Limited through its Branch Head, Sh. Vikas Gupta, SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh.  
2. M/s Emaar MGF Land Limited, through its MD, Sh.Shravan Gupta, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Arihant Goyal, Advocate for the complainants.

Sh.  Subrat Kumar Pradhan, DGM (Legal) of the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the Opposite Parties, on the basis of an application dated 06.10.2006 by the first allottee, allotted a unit bearing No.50TF in the commercial complex in Central Plaza at Mohali Hills in Sector 105, Mohali for the total consideration of Rs.42,82,210/- and against a booking amount of Rs.6,19,232/- vide receipt (Annexure C-2). Copy of the Agreement, which was executed between the first allottee(s) and the Opposite Parties is Annexure C-1. Thereafter, the first allottees paid the installments vide receipts (Annexures C-2 to C-5). It was stated that on 27.06.2008 the first allottees transferred the site in favour of the second allottee, which was endorsed in favour of the second allottee. The complainants were in the search of a suitable site for running their business in order to earn their livelihood came into the contact of second allottee and they  purchased the site from the second allottee, which was endorsed in their favour on 11.07.2008. On 19.08.2008 the complainants paid an amount of Rs.1,47,700/- towards transfer fee to the Opposite Parties  (Annexure C-8). Thereafter, the complainants made payment of installments (Annexure C-9 colly.). On 24.11.2009, the Opposite Parties intimated the complainants that the payment plan had been changed from time linked to construction linked plan (Annexure C-10). It was further stated that as per the letter dated 24.11.2009, the complainants were required to pay 75% payment before starting the third slab but they already made more than the required payment. On 28.04.2010, the Opposite Parties sent a demand letter for an amount of Rs.4,01,744/- and in the said letter, the net amount payable by the complainants were Rs.4,00,073/-, which was paid by them on 14.05.2010 vide receipt (Annexure C-12). It was further stated that by perusing the receipt dated 26.02.2011, it is clear that by February, 2011, the complainants made the payment of more than 90% of the total sale amount and, as such, there was no fault whatsoever on the part of the complainants with regard to payment of installments. It was further stated that as per Clause 22.1 of the Agreement, possession was to be handed over within a period of 36 months/3 years with a grace period of 90 more days, as such, possession was to be handed over to them latest by the year 2010 and if the period of possession counted from the date of endorsement i.e.11.07.2008, the same was to be delivered to the complainants latest by 11.10.2011 but the Opposite Parties failed to deliver the possession. It was further stated stated that vide letter dated 12.08.2015, the Opposite Parties revised super area of the unit and that too after retaining the site for more than three years (Annexure C-14). Not only this, the Opposite Parties have also demanded an amount of Rs.7,42,320/- towards registration charges, which is tenable and unsustainable in the eyes of law. The Opposite Parties also raised a demand of Rs.1,87,448/- vide letter dated 12.08.2015 towards delayed payment charges, whereas, it is the admitted position that before the starting of third slab, the complainants had already made the excess payment. It was further stated that the site was not ready for possession till the year 2015, as such, the Opposite Parties have caused a delay of more than 3 years in handing over the possession, for which, they are liable to be penalized. It was further stated that the complainants have already made more than 90% payment as and when demanded by the Opposite Parties, so they are not at fault, as such, they are not liable for payment of any delayed payment charges. 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 the complainants did not fall within the definition of “Consumer” as per the Consumer Protection Act, 1986 being a purchaser of commercial property. It was further stated that complainant No.1 is a property dealer and is engaged in large scale sale, resale, purchase of properties and making profits by selling, purchase and resale of properties, as such, he is not a  consumer. It was further stated that the complainants are subsequent purchasers of a commercial unit, in question, and has stepped into the shoes of earlier allottee. The earlier allottee had defaulted in making the payments of the due installments, as being apparent from statement of accounts, as such, they are not eligible for the delayed compensation. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint, as no cause of action has arisen within the jurisdiction of this Commission, as the unit, in question, is situated at Mohali, Punjab. It was further stated that this Commission has no pecuniary jurisdiction to try and entertain the complaint. It was further stated that the complainants have already offered possession of the commercial unit but they failed to take possession of the same and also failed to pay the delayed payment charges of Rs.2,82,586/-, basic cost payment of Rs.2,34,218/-, additional EDC of Rs.42,171/- and other applicable charges, as per the offer of possession letter. It was further stated that unit was initially allotted in the names of Sh.Rajesh Aswani, Sh.Vinal Raj Khurana and Sh. Rohit Nand and later, it was transferred only in the name of Sh.Rohit Nand on 24.07.2008 and from Sh.Rohit Nand, the present complainants purchased the commercial unit and stepped into the shoes of earlier allottees, which was endorsed in favour of the complainants on 07.08.2008 vide endorsement (Annexure R-2). The total sale consideration of the unit was Rs.42,82,210/- (excluding service tax). It was further stated that the complainants were well aware of the payment of due amounts on account of delayed payments and copies of some of reminders sent to the earlier allottees are Annexure R-4 (Colly.) and the complainants themselves asked for extension of time in making of payment and copy of letter dated 31.07.2008 is Annexure R-5. Copy of statement of account showing the details of payment made with regard to the present unit is Annexure R-6. It was further stated that the payment schedule was restructured from time linked to construction linked in order to facilitate the customers in making the payments smoothly.  It was further stated that the Opposite Parties shall try and endeavor to hand over possession, as per Clause 22.1 of the Agreement and no definitive time line was given in the Agreement. The Opposite Parties offered possession of the unit to the complainants vide letter dated 12.08.2015 but the complainants failed to pay the due amounts towards the unit, in question and neither taken the possession of the commercial unit. It was admitted regarding increased of the area of the unit. It was further stated that the registration charges, stamp duty charges and infrastructure cess are Government levies and mandatory to be paid for getting the conveyance deed executed in the customer’s favour. It was further stated that after perusal of the letter dated 28.04.2010 (Annexure R-8), 10% of sale price is due to be paid on start of third floor slab and a sum of Rs.1671/- was shown in credit of complainants. The only sum of Rs.1671/- was in excess and Rs.4,00,073/- was still payable. It was further stated that the complainants are also bound to pay the last installment as per the terms and conditions of the payment plan duly signed and accepted by them. It was further stated that the compensation for delays in handing over beyond the time frame mentioned in the Agreement is Rs.50/- per sq. feet per month, subject to the customers/allottees remitting all the payments on or before the due dates. Since the complainants have defaulted in remitting certain installments on or before the due dates, they shall not be entitled to any compensation. It was further stated that the Opposite Parties have been issued Occupation Certificate by the competent authority only after completion of unit, in question. It was further stated that in case of seeking refund of price, the Agreement has to be cancelled and forfeiture clause should come into operation and money should be refunded without any interest as possession has already been offered on 12.08.2015.  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 replication 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.           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 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

25.        The next 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  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

26.        To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), 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.”

27.                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

28.      Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

29.       In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

 “8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

30.     Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

31.        Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

32.        We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

33.        The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

34.        Not only this, recently, it was also so said by the National Commission, 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.”

35.     In  view of the above, the plea taken by the opposite party, that 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 no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.”

            In view of the above, the objection raised by Sh.Subrat Kumar Pradhan, DGM (Legal) of the Opposite Parties, being devoid of merit, is rejected.

7.           The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that the receipts (Annexures C-2 to C-5, C-8 & C-9 colly.), letters (Annexurs C-6, C-7, C-10 & C-11), acknowledgment-cum-receipts (Annexures C-12 & C-13) and letter of intimation of possession dated 12.08.2015 (Annexure C-14) were sent by the Opposite Parties from their Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017”. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial 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. 

8.           Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainants sought refund of the amount already paid by them alongwith interest @15% from the date of respective payments ;  compensation to the tune of Rs.5 lacs, for deficiency in service and mental harassment and cost of litigation to the tune of Rs.75,000/-. In the present case, both the parties did not mention even a single word regarding the amount deposited by the complainants. The Opposite Parties have also annexed statement of account (Annexure R-6), which clearly shows that the complainants deposited the total amount of Rs.40,43,010/- in respect of the unit, in question. If we add the compensation amount of Rs.5 lacs and litigation expenses of Rs.75,000/- in the deposited amount of Rs.40,43,010/-, the aggregate value whereof [excluding the interest claimed] fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

                As far as the interest claimed by the complainants, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. This issue has already been elaborately dealt with by this Commission in Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. & Anr., Consumer Complaint No.484 of 2016, decided on 15.12.2016. Relevant portion of the aforesaid judgment reads thus :-

“13.  Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and  in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

14.         In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. 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.”

 

15.         It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

                As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

                In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

16.         In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

9.           An objection has been raised by the Opposite Parties that the complainants are not consumers as the unit, in question, has been purchased for commercial/ investment purposes. It is, no doubt, true that the complainants are subsequent buyers because it is an admitted fact that initially, the unit was allotted in the names of Sh.Rajesh Aswani, Sh.Vinal Raj Khurana and Sh. Rohit Nand and later, it was transferred only in the name of Sh.Rohit Nand on 24.07.2008. Thereafter, the complainants purchased the said unit from Sh.Rohit Nand and the same was endorsed in favour of the complainants on 11.07.2008. As such, the complainants stepped into the shoes of the earlier allottee. It is not the case of the complainants that they concealed the material fact regarding purchase of the unit. The objection of the Sh.Subrat Kumar Pradhan, DGM (Legal) of the Opposite Parties is that complainants did not fall within the definition of “Consumer” being a purchaser of commercial property and also complainant No.1 is a property dealer and is engaged in large scale sale, resale, purchase of properties and making profits by selling, purchase and resale of properties. Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration because the complainants specifically averred in para No.8 of their complaint that the complainant was in the search of a suitable site for running his business in order to earn his livelihood came into contact of the second allottee and the complainant agreed to purchase the site from the second allottee after having a meeting with the representative of the Opposite Parties. The complainants in their rejoinder have clearly stated that the address of the property given by the Opposite Parties was a rented property and they vacated the property in the year 2014. It was also clearly mentioned by the complainants in para No.8 of their rejoinder that the complainant is not running the business in SCO No.231, First Floor, Sector 20, Panchkula and the complainant was a tenant in the above said property from the year 2010 till 2014. Even during the pendency of the complaint, on 15.11.2016 Sh.Sanjeev Sharma, Advocate, Sh.Subrat Kumar Pradhan, DGM (Legal) of the Opposite Parties took objection regarding the complainants did not fall within in the definition of “Consumer”. At the same time, complainant No.1, who was present in Court, stated that he has purchased only this property in his individual name and no other property has been purchased in and around Chandigarh during the relevant period. Under these circumstances, complainant No.1 was directed to file an affidavit stating, whether, other than the property in issue in this complaint, he had purchased any other property between the years 2008 to 2010 in New Chandigarh, Mohali and Zirakpur area and any other part of Haryana. If purchased, whether it is still with him or further sold. The said affidavit was to be filed by complainant No.1 on or before the next date of hearing and the matter was adjourned to 05.12.2016. In terms of the said order dated 15.11.2016, complainant No.1 placed on record his affidavit. The relevant portion of the said affidavit filed by complainant No.1 reads thus :-

“2. That during the year 2008 to 2010 the deponent has not purchased any other property in the area of New Chandigarh, Mohali, Zirakpur, Chandigarh and Panchkula except the present property and one residential property at Bollywood Heights, Peer Muchalla, Zirakpur and the present property is the sole property purchased by the deponent for the purpose of earning the livelihood.”

It is absolutely clear from the afore-extracted portion from the affidavit filed by complainant No.1 that the sold property, which is in dispute, purchased by him for the purpose of earning his livelihood. It is the admitted fact that complainant No.1 is a property dealer. However, it is relevant to note that complainant No.1 being a property dealer does not debar to purchase the property for earning his livelihood. With regard to commercial unit is concerned, it may be stated here that in Laxmi Engineering Works Vs. P.S.G. Industrial Institutes, 1995 (2) CPC 2 (Supreme Court), the Hon’ble Apex Court, in Paras 10 and 18, inter-alia, held as under:-

“The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly  clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood”.

 “Whether the purpose for which a person has bought goods is a "commercial purpose" within the meaning of the definition of expression "consumer" in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case.”

 

The Hon’ble Apex Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institutes’s case (supra), held that commercial purpose is to be established in the facts and circumstances of each case. When the area of the shop is not very huge, there is no reason to say that the unit, in question, was not purchased for the purpose of earning livelihood. The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in the written reply, therefore, being devoid of merit, is rejected. 

10.          Another objection raised by Sh.Subrat Kumar Pradhan, DGM (Legal) of the Opposite Parties that since it was mentioned in the Agreement that the Developer proposes to hand over possession of the unit within a period of 36 months from the date of signing of the Agreement, with a further grace period of 90 days and, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 22.1 of the Agreement that possession of the unit will be delivered by the Opposite Parties, within a period of 36 months from the date of signing of the Agreement and also further grace period of 90 days after the expiry of 36 months for applying and obtaining the occupation certificate in respect of the Central Plaza, subject to force majeure circumstances or reason beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 22.1 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 36 months from the date of signing of the Agreement, as such, time was,  unequivocally made the essence of contract.

              Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word tentative/proposed was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

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

In view of above, the plea of the Opposite Parties in this regard also stands rejected.

11.         The next question, that falls for consideration, is, as to within which period, the delivery of the unit, was to be given to the complainants. To prove the same, Clause 22.1 of the Agreement reads as under:-

“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 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.”

 It is clearly proved from the afore-extracted clause that possession of the unit was to be delivered to the complainants within a maximum period of 36 months from the date of signing of the Agreement. In the present case, the Agreement was executed between the initial allottee  and the Opposite Parties in the year 2007 but no specific date was mentioned on the said Agreement. Thereafter, the complainants purchased the unit from the new allottee, which was endorsed in favour of the complainants on 11.07.2008. If we counted 36 months from the year 2007, the possession would definitely be delivered latest in the year 2010 and not more than that because the further grace period of 90 days is only mentioned for applying and obtaining the occupation certificate. The Opposite Parties vide letter dated 12.08.2015 sent the letter of intimation of possession to the complainants i.e. after a delay of about five years.

12.          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 12.08.2015 (Annexure C-14), in respect of unit, in question, could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by the Opposite Parties, to prove that development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for Opposite Parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. However, the main grouse of the complainants is that, despite receipt of the huge amount from them, actual physical possession thereof, was not offered to them, whereas, on the other hand, paper offer was made to them, vide letter of intimation of possession dated 12.08.2015 (Annexure C-14) because they offered possession without obtaining the occupation certificate but in order to mislead the complainants, the Opposite Parties mentioned that the occupation certificate has been obtained by the Opposite Parties vide letter dated 18.11.2014, whereas, the occupation certificate has been issued by the competent authority on 22.03.2016. To prove this fact, the relevant portion of letter of intimation of possession dated 12.08.2015 (Annexure C-14) reads thus :-

“This is in reference to the captioned Unit allotted in your favor. We are pleased to inform you that the Company has received the occupation certificate for the captioned unit/complex vide letter dated in the Project dated 18-Nov-14 and the process of handing over physical possession of the Units, as your unit is ready to be handed over for possession.

Kindly note that on the final computation of the super area, there has been a change in the area of the Unit and Super Area of the captioned Unit now stands revised to 1,546.49 sq. ft. (143.67 sq. mtrs.) from the earlier area of 1477 sq. ft. (137.22 sq. mtr.). Accordingly the basic sale price, EDC/IDC, etc.  of the Unit/now stands revised…….””

  From the afore-extracted paragraph of the said letter, it is clearly revealed that the Opposite Parties misled the complainants regarding mentioning of the receipt of occupation certificate dated 18.11.2014 because a perusal of the occupation certificate attached by the Opposite Parties themselves at Annexure R-9 clearly reveals that the same was applied vide application dated 22.12.2015 and the completion/occupation certificate of the Central Plaza at Sector 105 in Mohali Hills, SAS Nagar was given by GMADA vide memo dated 22.03.2016 i.e. after about 8 months of offering of possession to the complainants. Not only this, the Opposite Parties applied for the said occupation certificate on 22.12.2015 and the offer of possession was given vide letter dated 12.08.2015 i.e. before the obtaining of the completion/occupation certificate from the authority and misled the complainants as well as this Commission. Not only this, the said issue of the same project of Central Plaza at Sector 105 was decided by this Commission in the case titled as Arvind Batra & Anr. Vs. Emaar MGF Land Limited & Anr., Consumer Complaint No.688 of 2016, decided by this Commission on 27.02.2017, the relevant portion of the said judgment reads thus :-

“21.       The next question, which falls for consideration, is, as to whether the possession offered was only a paper possession. To prove their contention, the complainants have placed on record information obtained under Right to Information Act, 2005 by one Navneet Mishra, dated 30.06.2015 (Annexure C-7), which reads thus:-

“1. For the approval under FCA, 1980, the case has been applied.

2. The entry points of Sector-105 project of M/s Emaar MGF Land Ltd. have been sealed by barbed wired and digging trenches by the Forest Department.

3. The above mentioned entry points have been sealed due to the reason that the user agency has not got permission to use forest Department’s land under FCA, 1980 from government of India.

4. Subject to final approval from the Government of India, the entry points will be opened.

5. Regarding the entry to Sector-109, a cse is pending before Hon’ble Civil Court, Kharar from 03-07-2012 u/s 29, 33 and 63 of IFA, 1927 and for violating the Hon’ble Supreme Court’s order dated 12-12-1996. The copies of the documents in regard to the same are annexed herewith.”

22.       On the other hand, the case of the Opposite Parties is that the alleged case was withdrawn by the Forest Department and, as such, the allegation of the complainants is not sustainable. The Opposite Parties have also placed on record copy of Completion/ Occupation Certificate dated 22.03.2016 of Central Plaza at Sector 105, in Mohali Hills, SAS Nagar and copies of necessary approvals from the Forest Department dated 22.06.2016 for diversion of 0.000486 Hectare (instead of 0.010 hectare) of forest land in favour of M/s Emaar MGF Land Ltd. for construction of approach road to integrated township Special Education and Wellness zone, Sector 105, Vill. Raipur Kalan dhool on Kharar-Banur-Tepla Road, subject to certain conditions. Since this approval was received by the Opposite Parties on 22.06.2016, the possession offered vide letter dated 11.05.2016 was incomplete. There is only gap of a month or so in receiving approval from Forest Department and offer of possession. After receipt of approval, the possession was complete on 22.06.2016 and the complainants were required to take the possession.”

Even the Opposite Parties mentioned in their written statement that the increase in the area is normally taken up after receipt of the occupation certificate and in the present case, the certificate was issued on 22.03.2016, whereas, the increase in the area has been measured by the Opposite Parties on 12.08.2015 i.e. 7 months prior to the issuance of the occupation certificate. So, it is clearly proved from the aforesaid contentions that the possession offered by the Opposite Parties is only a paper possession.

13.          The next question that falls for consideration, is, as to whether, the complainants were bound to accept offer of possession, in respect of the unit, in question, when the same was offered to them vide letter of intimation of possession dated 12.08.2015 (Annexure C-14), i.e. after long delay of about 5 years, and that too, in the absence of any force majeure circumstances. It may be stated here that non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Parties that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon`ble National Commission, held as under:-

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

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

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

 

In the case titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi on 03.07.2015.’ The relevant portion of the judgment reads thus :-

“16.    Admittedly, appellants did not offer possession of the apartment within  the prescribed period, in terms of Clause 21 of the “Apartment Buyer’s Agreement”,  Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only  in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame  the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering  service but are also guilty of indulging into unfair trade practice. The appellants in  the present  case are enjoying the hard earned money  of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.”

The aforesaid appeal was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi with punitive damages. Aggrieved against the aforesaid order, Emaar MGF Land Limited filed Special Leave to Appeal (C) No(s). 32492/2015 before the Hon’ble Supreme Court of India and the same was also dismissed.

                   In view of the above, it is held that since there was a material violation on the part of the Opposite Parties, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainants were at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

14.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the deposited amount by them in respect of the unit, in question. It is relevant to mention here that both the parties did not mention even a single word that how much amount was deposited by the complainants in respect of the unit, in question. It is clear from the statement of account (Annexure R-6) annexed by the Opposite Parties that the complainants deposited the total amount of Rs.40,43,010/-. It is also clear from the statement of account that the initial allottees made the payments to the Opposite Parties with some delay, therefore, the Opposite Parties demanded the delayed payment charges. It is an admitted fact that the  Opposite Parties are unable to deliver  possession of the unit, in question, complete in all respects, within the stipulated timeframe, as mentioned in the Agreement and the possession offered to the complainants vide letter dated 12.08.2015 i.e. after a huge delay of about five years. The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit, in question. The  Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

15.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is admitted from the statement of account that the complainants made the payment of Rs.40,43,010/-, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the  Opposite Parties were charging heavy rate of interest (@15% p.a. simple) 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. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainants are certainly entitled to get refund of the amount deposited by them alongwith interest @12% p.a. (simple), from the respective dates of deposits till realization. 

16.          As far as the plea taken by the Opposite Parties, regarding forfeiture of earnest money 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, 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 the earnest money, 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.

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

18.          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 Rs.40,43,010/-, to  the complainants, alongwith interest @ 12% p.a. (simple), from the date of endorsement i.e. 11.07.2008 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 interest @15% p.a. (simple), instead of interest @ 12% p.a. (simple), from the date of endorsement, till realization, and interest @12% p.a. (simple), on the  amounts mentioned at Clause (ii) & (iii), from the date of filing the complaint, till realization.

 

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

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

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

Pronounced.

March 29, 2017.                                     Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

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 [DEV RAJ]

MEMBER

 

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 (PADMA PANDEY)

        MEMBER

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