Chandigarh

StateCommission

CC/601/2016

Manjit Singh - Complainant(s)

Versus

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

Yogesh Jain, Adv.

06 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	601 of 2016
Date of Institution	:	19.09.2016
Date of Decision	:	06.02.2017

 

1. Manjit Singh s/o Late Sh. Gurbhej Singh.
2. Harminder Kaur w/o Manjit Singh.

Both residing at D-126, Ranjit Avenue, Defence Colony, Amritsar, Punjab.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Ltd., through its CEO Shrikant P.Joshi, having its Registered Office at ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001 and local city office at SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh – 160017, Punjab.

 

2. Mr.Sanjay Malhotra, Director, Chief Financial Officer, M/s Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001.

 

3. Parminder Singh Sehgal, Executive President of North Operations, M/s Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001.

 

4. Y.K.Jain, Chief Operating Officer of Mohali Projects, M/s Emaar MGF Land Ltd., SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh – 160017, Punjab.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

Argued by:      

Sh.  Rohan Mittal, Advocate for the complainants.

Sh.  Ajiteshwar Singh, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainants applied for allotment of residential apartment and paid the amount of Rs.7 lacs (Annexures C-1 & C-2). The Opposite Parties allotted apartment No.L3-F03-301, 3^rd Floor, Tower L in their project vide letter dated 30.09.2008 (Annexure C-3). Thereafter, Buyer’s Agreement dated 03.11.2008 (Annexure C-4) was executed between the parties. It was stated that the complainants paid their dues well within stipulated timelines and, as such, they paid the total amount of Rs.51,06,318/- in respect of the unit, in question. It was further stated that as per Clause 21 of the Agreement, possession of the unit was to be delivered within a period of three years from the date of allotment, which was 30.09.2008. Complainant No.1 wrote a letter to the Opposite Parties to know about the status of the construction, which was responded by them vide email dated 24.02.2011 (Annexure C-6), whereby, they informed that the construction of Tower L, where the apartment of the complainants is situated had not been started and only expected to start in the middle of the year 2011. Thereafter, complainant No.1 wrote back to the Opposite Parties regarding seeking clarification of the penalty, which was duly replied by them vide email dated 25.02.2011 and informed that a penalty of Rs.5/- per sq. ft. per month would be payable at the time of possession. Copies of the emails are Annexure C-7 (colly.). The Opposite Parties vide email dated 08.07.2011 (Annexure C-8) once again clarified that delayed compensation, as stipulated in the Agreement, should be paid and adjusted at the time of possession.  Then, the letters/emails were exchanged between the parties regarding possession (Annexures C-9 & C-10). It was further stated that the complainants vide email dated 04.09.2012 wrote to the Opposite Parties seeking clarification on the status of the rebate applicable to the complainants on timely payments about the compensation for delay in possession, which was duly replied by the Opposite Parties vide letter dated 06.09.2012 (Annexure C-11) that the said amount is to be adjustable at the time of possession. The complainants time and again wrote letters/emails to the Opposite Parties between October, 2013 and May, 2014 (Annexure C-12 colly.). It was further stated that till May, 2014 internal flooring has not been completed and last of such communications with respect to the status of tower came on 25.04.2016, whereby, the complainants were informed that the final finishing work in Tower L is expected to be completed by the end of the year. Copies of the emails between May, 2014 and April, 2016 are Annexure C-13 (Colly.). The complainants patiently waited to get possession of the apartment about 8 years, even though possession was promised in three years. The complainants wrote to the Opposite Parties time and again pleading for possession but to no avail. 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 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 no pecuniary jurisdiction to try and entertain the complaint, as the relief claimed by the complainants i.e. refund of the amount of Rs.51,06,318/- alongwith interest, compensation and litigation expenses, exceeds the limit of Rs.1 crore. It was further stated that the complainants themselves approached the Opposite Parties seeking allotment of the subject property with no element of allurement. It was further stated that the offer of Early Payment Offer (EPR) for payments made in advance was offered on 13.01.2012 (Annexure R-2) and the same was subject to its own terms and conditions. It was further stated that the portion of the amounts paid by the complainants were statutory dues, which have already been defrayed to the concerned authorities by the Opposite Parties and in this regard, reference made to the letter dated 25.07.2012. It was further stated that pay on time offer of 04.02.2009 explicitly stated that the same is applicable in cases where the complainants continued to defray all the amounts due on or before the due dates, as stated in the demand letters, failing which, the complainants would be disqualified from the same. It was further stated that the complainants failed to abide with the schedule of payment, as appended to the Agreement and the Opposite Parties were constrained to notify the default/delay in payment of the amounts due through its letter dated 04.05.2013 (Annexure R-4). It was further stated that the complainants have delayed in defrayment of amounts due to the Opposite Parties and in this regard, complete statement of accounts as on 20.10.2016 (Annexure R-5). It was further stated that all the communications, as received from the complainants were duly replied to by the Opposite Parties and the same are collectively enclosed as Annexure R-6. It was admitted regarding booking of the unit; provisionally allotted the unit and execution of the Agreement. It was denied that the complainants are ‘consumers’ under the Act and the subject property allegedly being their first and only residential property. It was further stated that the complainants should disclose the details pertaining to their current residential accommodation, as also, details of all the Agreements, with other developers. It was further stated that the total sale consideration in respect of the subject property is Rs.58,60,158/-, out of which, an amount of Rs.7,53,850/- remains unpaid. It was further stated that the complainants have failed to remit the balance amount to the Opposite Parties and, as such, cannot claim any relief. It was further stated that the subject property would be ready with all the amenities by July, 2017. Even in respect of Tower L3, where the subject property is situated, work upto common area flooring have been completed and electrical wiring work is under progress. All the other allegations leveled by the complainants in their complaint were denied by the Opposite Parties. 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 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.

7.           Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainants have sought refund of an amount of Rs.51,06,318/- paid by them, towards price of the unit, alongwith interest @18% p.a. from the date of payment, till realization;  to allow the further pendent lite and future interest as claimed ; compensation to the tune of Rs.10 lacs, for mental agony, harassment etc.; compensation under Section 14(hb) of Consumer Protection Act on account of unfair trade practice and cost of litigation, to the tune of Rs.55,000/-, aggregate value whereof [excluding the interest claimed] fell above Rs.50 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.

8.           The objection taken by the Counsel for the Opposite Parties, to the effect that the complainants did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act because the complainants did not disclose the details pertaining to their current residential accommodation, as also, details of all the Agreements, with other developers. Even the complainants in para No.1 of their complaint has clearly stated that complainant No.1 is retired and presently residing in Amritsar and complainant No.2 is the wife of complainant No.1. They further mentioned that complainant No.1 has put his entire life savings from his job to buy the apartment in question, which is the first and only residential property that the complainants have bought. So, the complainants have clearly disclosed that it is the first and only residential property, which was bought by them from the Opposite Parties. It may be stated here that there is nothing, on the record, that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Counsel for the Opposite Parties, mere bald assertion that the complainants did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

9.           The next question that falls for consideration, is, as to within which period possession of the unit was to be delivered to the complainants. It is the admitted fact that Unit Buyer’s Agreement was executed between the parties on 03.11.2008 (Annexure C-4) and as per Clause 21.1 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of allotment and the Company shall be entitled to a grace period of 90 days, after the expiry of 3 months for applying and obtaining the occupation certificate in respect of the Group Housing Complex. So, it is clearly proved that possession of the unit was to be delivered within a maximum period of 36 months from the date of allotment. In the present case, unit/apartment No.L3-F03-301 was allotted to the complainants vide letter dated 30.09.2008 (Annexure C-3). However, the Opposite Parties failed to deliver possession of the unit, complete in all respects, to the complainants, within the stipulated period or by the time when the complaint was filed, which amounts to deficiency in service and unfair trade practice on the part of the Opposite Parties.

10.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.51,06,318/-, as claimed by them in the prayer clause of the complaint. A bare perusal of the statement of account, annexed by the complainants (Annexure C-14) clearly reveals that they deposited the total amount of Rs.51,07,318/- instead of Rs.51,06,318/-, as claimed by them. It is also an admitted fact that the  Opposite Parties are unable to deliver  possession of the unit, in question, within the stipulated period, as mentioned in the Agreement or by the time, when the complaint was filed because the Opposite Parties admitted in para No.19 of their written statement that “the subject property would be ready with all amenities by July, 2017.” It is also admitted by the Opposite Parties that they already offered possession in two of the towers of the project and work has been expedited to hand over the balance towers at the earliest. Moreover, in respect of Tower L3 where the subject property is situated, works up to common area flooring have been completed and electrical wiring work is under progress. So, it is clearly proved that the Opposite Parties not only earlier but even now are unable to deliver possession of the unit to the complainants. The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. 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 of Rs.51,06,318/- as prayed 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.

11.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is evident from the statement of account that an amount of Rs.51,07,318/-, was paid by the complainants, without getting anything, in lieu thereof. The complainants claimed the amount of Rs.51,06,318/- in the prayer clause of the complaint. 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 (compounded @15% p.a.) as per Clause 20.1 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, to the tune of Rs.51,06,318/-  (as prayed by them) alongwith interest @15% p.a. compounded, from the respective dates of deposits till realization.

12.           As far as the plea taken by Counsel for the Opposite Parties at the time of arguments, 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 it was 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 on account of failure on the part of the Opposite Parties to hand over possession by the stipulated time 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.

13.          Since the complainants are sufficiently being granted the amount of Rs.51,06,318/-, as prayed by them, alongwith interest, compensation and litigation expenses, they are not entitled to any other claim, as claimed by them in the prayer clause.

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

15.          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.51,06,318/-, to  the  complainants, alongwith interest @15% p.a. compounded,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a. compounded, instead of @15% p.a. compounded, from the respective dates of deposits onwards, and interest @15%  p.a. compounded, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

16.          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).

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

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

Pronounced.

February 6, 2017.                                   Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

rb