Chandigarh

StateCommission

CC/703/2016

Mr. Vikas Kochhar - Complainant(s)

Versus

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

Complainant in person

05 Apr 2017

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	703 of 2016
Date of Institution	:	18.10.2016
Date of Decision	:	05.04.2017

 

1. Mr.Vikas Kochhar aged 41 years
2. Mr.Sanjay Kochhar aged 49 years

Both sons of Sh.J.P. Kochhar, residents of House No.3298, Sector 46-C, U.T., Chandigarh.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Limited, (Mohali Hills), SCO No.120-122, First Floor, Sector 17-C, Chandigarh-160017, through its Managing Director/Director/Authorized Signatory.

 

2. M/s Emaar MGF Land Limited, Corporate Office at ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Chairman/Managing Director/Director/ Authorized  Signatory.

.... Opposite Parties No.1 and 2.

3.     HDFC Limited, SCO No.153-155, Sector 8C, Madhya Marg,         Chandigarh, through its Branch Manager.

....Proforma Opposite Party No.3

BEFORE:                JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                             MR. DEV RAJ, MEMBER.

                             MRS. PADMA PANDEY, MEMBER

 

Argued by:         Sh.Vikas Kochhar, complainant no.1 and on    behalf of    complainant no.2.

       Sh.Ashim Aggarwal, Advocate for the    Opposite Parties           No.1 and 2.

       Ms.Rupali Shekhar Verma, Advocate for Opposite Party   No.3

 

PER PADMA PANDEY, MEMBER

                   The facts, in brief are that the complainants being real brothers had a day dream to have their own plot in tricity, as such, they approached Opposite Parties No.1 and 2 in August, 2010 with a view to purchase a residential plot No.153, measuring 300 square yards in Sector 105, Central Park, Mohali Hills, SAS Nagar Mohali, Punjab, which was already sold to one Rajeev Handa. It was further stated that the complainants purchased that plot from Mr.Rajeev Handa, in resale and the same was transferred in the name of the complainants, after completing necessary formalities required, vide indemnity cum undertaking and affidavit dated 23.08.2010 (Annexure C-4 colly). The complainants paid Rs.40,82,394/- towards sale consideration of the plot in question, which includes basic sale price of Rs.34,50,000/- (+) external development charges of Rs.2,01,144/- and preferential location charges of Rs.4,31,250/-. It was further stated that to pay amount towards plot, the complainants raised loan of Rs.34.70 lacs from Opposite Party No.3, vide loan documents Annexure C-3 colly. It was furher stated that the documents pertaining to the plot was handed over to the complainants including Plot Buyer`s Agreement dated 20.06.2007 (Annexure C-5). As per Clause 8 of the Buyer’s Agreement, Opposite Parties no.1 and 2 were liable to handover physical possession of residential plot within 3 years i.e. on or before 19.06.2010, subject to force majeure circumstances but they failed to deliver possession of the plot. It was further stated that number of requests were made by the complainants to deliver possession of plot but to no avail. It was further stated that  vide letter  dated 14.01.2014 (Annexure C-6) Opposite Parties No.1 and 2, demanded an amount of Rs.5,76,685.64ps. for handing over possession of the plot.  After receipt of that letter, complainant no.1  tried to enter into the project to see the development  but he was not allowed to enter as the entry gates were sealed/fenced by the Govt. of Punjab, Forest Department. Then on 16.05.2016, a meeting was held with Mr.Mohit Kaura,                                  GM of Opposite Parties no.1 and 2, who accompanied the complainants on 17.05.2016. It was further stated that on visit, it was found that the entire project site was only a jungle, covered with shrubs and trees only and there was no development and basic amenities like roads, water, electricity etc., were found missing at the site. Photographs Annexure C-7 (colly.) of the site visit alongwith Mr.Mohit Kaura, GM of Opposite Parties no.1 and 2 were clicked on 17.05.2016 and are placed on record. It was further stated that Mr.Mohit Kaura assured that amount deposited by the complainants will be refunded alongwith interest by the end of June 2016, but to no avail.  It was further stated that thereafter the complainants sent detailed email dated 31.07.2016 Annexure C-8 and again sought refund of the amount deposited alongwith interest. It was further stated that to the utter shock, Opposite Parties no.1 and 2 vide email dated 01.08.2016 Annexure C-9 informed the complainant that possession of the plot was offered to them vide letter dated 14.01.2014 after completing all the amenities and services, as per the Agreement. It was further stated that information placed on record obtained by similar consumers, under RTI Act reveals that Opposite Parties No.1 & 2, were not in legal position to deliver possession of plots in the said project for want of basic amenities, and requisite permissions/ approvals/sanctions.  It was further stated that till date actual physical possession of the plot has not been offered and delivered by Opposite Parties no.1 and 2, nor they are in position of the same.  The complainants have also placed on record RTI Informations and letters to prove the fact regarding lack of approvals, basic amenities and sealing of the project. 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.           Opposite Parties No.1 and 2, 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 possession of the plot was offered in 2010 and the complaint filed now is time barred. It was further stated that possession of the unit was offered to the complainants after completion of the amenities, as per the terms and conditions of the Agreement. It was further stated that letter of intimation of possession was sent to the original allotted on 17.05.2010. It was stated that this Commission has no pecuniary jurisdiction as well as territorial jurisdiction to try and entertain the complaint. It was further stated that reminder letter was sent to the complainants on 16.12.2011 but they failed to take possession of the plot. They also failed to place on record undertaking cum indemnity furnished by them on 14.10.2014.  It was further stated that the complainants did not fall within the definition of “Consumer” as prescribed under Section 2(d) of the Consumer Protection Act as the complainants purchased the plot, in question, for commercial purposes/speculation. It was further stated that as per Clause 8 of the Agreement, the Company shall try and endeavor to hand over possession of the unit within 3 years from the date of execution of the Agreement and in case of delay, the Company was liable to pay compensation but in the present case, the complainants were not entitled for the same. It was further stated that vide letter dated 14.01.2014, demand made was legal. It was further stated that all the necessary approvals were obtained by the Company when the unit was allotted to the complainants. It was further stated that the complainants were duly attended by the officials of Opposite Parties no.1 and 2. It was further stated that Partial Completion Certificate has already been obtained by the replying Opposite Parties. It was further stated that vide letter dated 11.02.2010, GMADA granted permission to the Opposite Parties for six approaches from Kharar-Banur-Tepla road in Village Raipur kalan to the project of the Opposite Parties No.1 and 2 and relevant fee was deposited by them. It was further stated that the responsibility of obtaining all statutory permissions for development of the Kharar-Banur-Tepla road is of the state authorities. It was further stated that vide letter dated 15.04.2015 the Chief Administrator, GMADA was requested by the Opposite Parties no.1 and 2 to take up issue with Forest Department to provide connectivity. It was further stated that the Forest Department has sealed certain entry points but there is still adequate access to the unit of the complainants i.e. through a motorable road and stand of the complainants that all entry points are sealed is malafide and without any basis. The information placed on record obtained from the Competent Authorities were denied.  It was further stated that in case complainants want refund, then it would amount to cancellation of Agreement and refund would be governed by the terms and conditions of the Agreement. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties No.1 and 2, nor they indulged into unfair trade practice.
3.           Opposite Party No.3 in its written version stated that the complaint against it be dismissed as no allegations of deficiency in service and unfair trade practice has been leveled by the complainants. It was further stated that the complainants have prepaid the entire loan amount and no outstanding amount is recoverable from the complainants.
4.           The complainants, filed rejoinder to the written statement of the Opposite Parties No.1 and 2, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties No.1 and 2. 
5.           The Parties led evidence, in support of their case.
6.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
7.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 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 Counsel for Opposite Parties No.1 and 2, being devoid of merit, is rejected.

8.           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 Plot Buyer’s Agreement (Annexure C-5) was executed between the parties, at Chandigarh. Not only this, payments receipts, as reflected from pages 118 to 130 show that they were issued from Opposite Parties no.1 and 2, at Chandigarh, 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 Opposite Parties No.1 and 2, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

9.                Another objection taken by Opposite Parties No.1 and 2, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainants sought refund of an amount of Rs.42,52,051/- deposited by them, alongwith interest @18% p.a. from the respective dates of deposits till realization;  compensation to the tune of Rs.5 lacs, for mental agony & physical harassment and cost of litigation, to the tune of Rs.1,00,000/-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 No.1 and 2, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

10.             The objection taken by Opposite Parties No.1 and 2, to the effect that the complainants being investors did not   fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It is pertinent to note that the complainants in para No.4 of their complaint have stated that they purchased the plot exclusively for their residential purpose. 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. Complainant no.1 is a Bank Employee and complainant no.2 is an Army Officer. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Parties No.1 and 2, mere bald assertion i.e. simply saying that the  complainants being investors, 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 No.1 and 2, in their written reply, therefore, being devoid of merit, is rejected.

11.             The next question that falls for consideration is as to whether possession of the plot was actually offered to the complainants and if yes, on which date, and  whether the same was offered after completion of all basic amenities and development work.

                   To answer this question, first of all, it is necessary to mention here that before offering possession of a plot by a builder/Opposite Parties No.1 and 2, they were required to complete development works, provide motorable roads and connectivity with the main roads; provide basic amenities such as water, electricity, STP, etc.; obtain completion/partial completion certificates and necessary approvals from the Competent Authorities.

                   In the instant case, Opposite Parties No.1 and 2 very strongly contended that intimation of possession of the plot had been given to the original allottee vide letter dated 17.05.2010. However, this fact has been denied by the complainants, as they had purchased the plot only on 23.08.2010 and were not in the know of the things, which happened before that date.  However, it is very pertinent to mention here that though Opposite Parties No.1 and 2 have very strongly relied upon letter dated 17.05.2010 but they failed to produce on record the said letter, to enable this Commission to go through the contents of the same. Even this much has not been proved, as to by which mode, the said letter was sent to the original allottee, by Opposite Parties No.1 and 2. The receipt of said letter has also not been produced on record. As per Clause 36 of the Agreement, Opposite Parties No.1 and 2 were bound to send any letter, in writing, through registered A.D. Post or Speed A.D. To substantiate their ground, they were required to produce on record the letter dated 17.05.2010 and also the receipt(s) if any, vide which receipt of the same was acknowledged by the original allottee, but they failed to do so. What were the contents of that letter, were also not brought on record. Even otherwise, had that letter dated 17.05.2010 been sent, the same would have been definitely placed on record in respect of the plot, in question, retained by Opposite Parties No.1 and 2 and would have endorsed in favour of the complainants at the time of resale but the same is also not the case of Opposite Parties No.1 and 2. If it is assumed to be true that the said letter was received by the original allottee, then the same being a very crucial document, would have definitely been in the custody of Opposite Parties No.1 and 2 but they failed to place on record the same.  Thus, in the absence of that record, it is held that no such intimation regarding possession was ever sent to the original allottee, by Opposite Parties No.1 and 2.

12.             Now coming to the second stand of Opposite Parties No.1 and 2, that vide letter dated 16.12.2011 (Annexure OP-2), the complainants were reminded to start construction. Same is the case with this letter also. The complainants have denied of receipt of such letter. Regarding this letter also, Opposite Parties No.1 and 2 failed to produce on record, to convince this Commission, that the said letter was actually  sent to the complainants. The mode vide which, this letter was allegedly sent to the complainants is also missing. In these circumstances, if Opposite Parties No.1 and 2 have allegedly sent the said letter, by violating the terms and conditions of the Agreement, they cannot take any advantage of the same, especially when the complainants have specifically denied receipt of the same. It was the only Opposite Parties No.1 and 2, which could have proved that the letters aforesaid were actually sent to the original allottee or to the complainants, but they miserably failed to do so.

13.               It is an admitted case of the parties, that vide letter dated 14.01.2014 (Annexure C-6), the complainants were asked to deposit Rs.5,76,685.64Paisa. In the said letter, it has been very clearly mentioned by Opposite Parties No.1 and 2 to make the said payment so that they are able to hand over possession of the plot on 30.01.2014, meaning thereby that possession of the plot was not handed over to the complainants till 14.01.2014.  However, surprisingly in this letter dated 14.01.2014, a contrary stand has been taken by Opposite Parties No.1 and 2 stating that intimation of possession of the plot was given vide letter dated 29.11.2009. The relevant contents of the said letter says as “This is in furtherance to our Intimation of Possession letter dated 29-11-2009”.  From the contents of this letter, the stand taken by Opposite Parties No.1 and 2 that intimation of possession for the first time was given to the original allottee on 17.05.2010 is defeated. Even the said letter dated 29-NOV-2009 has not been placed on record, meaning thereby that the same was also never sent to the original allottee or to the complainants. Not even a single penny has been levied towards holding charges in the said letter.

14.              It is  admitted case of the complainants that on  receipt of said letter, when he tried to enter the project site, he was not allowed to enter because of fencing/sealing of entry points by the Forest Department.  Ultimately, on 17.05.2016, complainant was accompanied by Mr.Mohit Kaura, General Manager of Opposite Parties No.1 and 2 to the site. The complainants have placed on record photographs (Annexure C-7 colly.) alongwith Mr.Mohit Kaura on the said date at the site, which reveal that the project was not developed at all. Roads, water, electricity and other basic amenities are not visible at the site. Opposite Parties No.1 and 2 did not deny the fact of  site visit of the complainants alongwith Mr.Mohit Kaura and photographs taken on the said date.  Even vide email dated 01.08.2016 Annexure C-9 also, Opposite Parties No.1 and 2 have admitted the fact of meeting of the complainants with Mr.Mohit Kaura. If this fact has been admitted by Opposite Parties No.1 and 2 in their written version, then the stand of the complainants that by the said date, there was no development at the site, has to be accepted as correct. Thereafter, left with no alternative, the complainants sought refund of amount deposited,  vide email dated 31.07.2016 (Annexure C-8).

15.              It is also very interesting to note in this case that Opposite Parties No.1 and 2 from the very beginning in their written version, were putting stress that they have in the first instance gave intimation of possession of the plot to the original allottee on 17.05.2010. However,  in letter dated 14.01.2014 (Annexure C-6) they stated that they gave intimation of possession vide letter dated 29.11.2009. But, vide email dated 01.08.2009 (Annexure C-9), they took a somersault and in a very clear-cut manner, informed the complainants that possession was offered to them vide letter dated 14.01.2014. Relevant contents of email dated 01.08.2016 are reproduced hereunder:-

“Dear Mr. Kocchar,

Greetings from Emaar MGF!

This is with reference to your email dated 31^st  July '2016.

We wish to inform you that it was only after the completion of all amenities and services that possession was offered to you vide our letter dated 14^th  January' 2014. We would also like to inform you that the company has a clear ownership of the land on which the unit is located and all services have been completed as per terms and conditions of the buyer's agreement and possession offered subsequently.

We do acknowledge the meeting with Mr. Kaura but at no point in time was it confirmed or communicated that we would take up your case for refund with interest. The discussion with regard to the levy of PLC charges did happen and it was stated that the matter will be taken up for consideration and a decision communicated subsequently. Therefore, though it would not be possible for us to consider your request for refund with interest since possession has already been offered on the unit, we would definitely look into the issue regarding the PLC charges and respond to you within the above time-lines.

Further, with reference to the recent media reports regarding reorganization of the business of Emaar MGF Land Limited (“Company”), we would like to bring to your kind notice that to ensure focused leadership and development of the on-going projects, the Company has initiated the process of demerger of the Company pursuant to a Scheme of Arrangement under Section 391-394 of the Companies Act, 1956 and has also filed such Scheme with the Hon’ble High Court of Delhi.

We would like to inform you that the Company under the leadership of Emaar, is committed to provide effective management to your project. The company is committed to your interests and with the reorganization, the complete focus of the company will be to safeguard the interests of its customers.

Should you require any further assistance, please feel free to email us at feedback@emaarmgf.com or call us on 1-800-103-3643.

We again thank you for being a valued customer of Emaar MGF.

warm regards,

                        Ashok Nanda-Deputy Manager-Customer Services                                                           Emaar MGF Land Limited”

         

16.             Now the question, which falls for consideration is as to whether, offer made by Opposite Parties No.1 and 2, to the complainants, vide letter 14.01.2014 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/Opposite Parties No.1 and 2. 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 Opposite Parties No.1 and 2, to prove that when offer was made to the complainants, in respect of the plot, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, had all the development activities, been undertaken, and completed at the site, by the said date, then it was for Opposite Parties No.1 and 2, 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. Opposite Parties no.1 and 2 were also required to produce on record, a copy of the Completion Certificate (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to do so. It is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer. On the other hand, partial completion certificate has been placed on record, which dated 16.10.2015 and that too was conditional.

17.             To prove their case, that the basic amenities were not in existence at the project, the complainants have placed on record, copies of the RTI Information, relating to the said project, in question. Vide RTI Information dated 29.04.2014 (Annexure C-16), it was clearly intimated by Greater Mohali Area Development Authority (GMADA), that Opposite Parties No.1 and 2, had not even applied to them for commission of sewerage treatment plant, water supply, electricity etc. The said RTI Information goes unrebutted by Opposite Parties No.1 and 2. Not even a single document has been brought on record to prove that the information relating to non-existence of basic amenities, mentioned in the said RTI Information is false, or that the said information was fabricated by the complainant. Had the said information been false or fabricated, Opposite Parties No.1 and 2, could have obtained certificate from the said Authorities, to say that the same had not been supplied from their Department, but they (Opposite Parties no.1 and 2) failed to do so. Thus, it could safely be said that the complainants have proved their case, that Opposite Parties No.1 and 2 did not even obtain permission to provide basic amenities such as water, electricity etc., till  29.04.2014, the date when RTI information aforesaid, was issued by the Authorities concerned.

18.             It is also an admitted case, that entry points of the project had been sealed by the Forest Department, as Opposite Parties No.1 and 2, failed to take requisite permissions/sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2). Not only this, the said fact is further corroborated from the letter dated 15.04.2015 Annexure-OP/7 (at page 191 of the file), placed by Opposite Parties no.1 and 2 only, sent to the Chief Administrator, GMADA, requesting it to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by Opposite Parties No.1 and 2, in the said letter that “…….we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. This admission of the Opposite Parties no.1 and 2, in the letter dated 15.04.2015 written to the Chief Administrator, GAMDA, itself clearly goes to prove that even till that date (15.04.2015), they  were not in a position, to deliver possession of the plot(s) to their customers, including the complainants, in the said project, on account of reason that the entries thereof  had been sealed by the Forest Department, stating it to be an “illegal access through the Forest Strip”, permissions/sanction, whereof has not been obtained by them. Not even a single piece of evidence has been brought on record, to prove that the said entry points have been got reopened by Opposite Parties No.1 and 2, after having obtained permission from the Authorities concerned.

19.             It is also significant to add her that in respect of the same Sector (105), Opposite Parties No.1 and 2, on 14.09.2016, has very candidly admitted before the National Commission in FIRST APPEAL NO. 708 OF 2016 that their entry points have been sealed by the Forest Department, and as such, the same may be treated as force majeure circumstances. The National Commission has negated the plea raised by Opposite Parties o.1 and 2 and ordered refund of the amount paid to the complainants. Relevant portion of the said order is reproduced below:-

“It is vehemently argued by Mr.Aditya Narain, learned counsel appearing for the Appellant that since the delay in delivery of possession of the flat in Sector 105 is directly attributed to the sealing of the main access road to the Sector by the Forest Department, one of the factors which weighed with the State Commission, falls within the ambit of force majeure clause in the agreement, there is no deficiency in service on the part of the Appellant in its alleged failure to deliver the possession of the subject flat in question by the committed time.  He thus prays that ex parte ad interim stay may to be continued. 

Prima facie, we are not convinced with the submission.  Hence, without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant is still not in a position to deliver possession of the fully developed flat with proper access, to the Complainant, we direct that the Appellant shall deposit in this Commission the principal amount(s) deposited by the Complainant with them, within 6 weeks from today.  On deposit of the said amount(s), it will be open to the Complainant to withdraw the said amount, on filing affidavits, undertaking to this Commission that he will refund the amount withdrawn, if so directed at the time of final disposal of the Appeal.  Subject to the said deposit, the operation of the remaining directions, regarding interest, compensation, etc., in the impugned order shall remain stayed.”

                   If it is so, then  it remained unclarified by Opposite Parties No.1 and 2, as to when entry points of the project were sealed, how could they offer possession of the units, to the allottees, including the complainant, in the year 2014 or till 14.09.2016. In view of above, it is held that the act of Opposite Parties No.1 and 2, in offering paper possession of the plot, in question, in the absence of development work; basic amenities at the site; non-obtaining of completion certificate, and also entry points of the project being sealed/closed by the Forest Department, amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the offer of possession made by Opposite Parties No.1 and 2, is nothing, but a paper possession, which is not sustainable, in the eyes of law.

20.             In view of the above, contention raised by Counsel for Opposite Parties No.1 and 2 that the complainants vide undertaking vide indemnity, dated 14.10.2014, has admitted that Opposite Parties No.1 and 2 have offered possession of the plot has no significant value. When the alleged offer was made on 29.11.2009, the complainants were not even in picture. As stated in earlier part of this order, the letter dated 29.11.2009 has not been placed on record, and therefore in the absence of it, reliance upon it cannot be placed, for giving any benefit of doubt, to Opposite Parties No.1 and 2. The complainants have alleged that the said undertaking was obtained by Opposite Parties No.1 and 2 on the pretext of refund of excess charges, which was requested by them vide email dated 20.08.2014. The said fact was found related with the contents of email dated 20.08.2014, wherein the complainants wrote that “kindly send the soft copy of indemnities for the above unit. Accordingly we will submit the same for refund”.  In response to the said email, Opposite Parties No.1 and 2 sent the proforma of indemnities attached with email dated 26.08.2014. Thereafter, it has been proved on record that after submitting the said indemnities in the month of October, 2014, the complainants sent various reminder vide emails dated 17.01.2015, 20.01.2015, 31.01.2015, 05.02.2015, and finally on 09.02.2015. However, Opposite Parties No.1 and 2, in their reply  to application dated 23.02.2017 filed by the complainants, have tried to twist the facts  by mentioning the date of email as 02.09.2015 (which in fact was 09.02.2015), just in order to prove that the same was not a chain male of the emails dated above. The email dated 09.02.2015, was the last email and a part of chain mails referred to above, sent by the complainants requesting for refund of excess amount.

21.             Whatever the case may be, even in the said indemnity, it has been stated that the indemnified i.e. complainants have approached the  beneficiary i.e. Opposite Parties No.1 and 2, to requesting for physical hand over of the possession of the plot and undertook to get the sale deed executed and registered within a period of three months. The said contents of indemnity itself proves that by 14.10.2014, possession of the plot was still to be handed over to the complainants. Thereafter, it is admitted case, that the complainants approached  Opposite Parties No.1 and 2 for taking over possession but they found the entries sealed  and also there was no development at the site and physical possession of the plot was not feasible. 

22.             At the same time, it is also held that once it is proved on record that the complainants came into picture, for the first time only on 23.08.2010 at the time of purchase of plot in resale, the stand of Opposite Parties No.1 and 2 that vide indemnity aforesaid, that the complainants were offered possession on 29.11.2009, as mentioned in the said indemnity and especially when it is proved on record that Opposite Parties No.1 and 2 were not in a position to deliver possession till September 2016,  cannot be accepted, as correct.

23.             The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not.  It may be stated here that since it has been held that actual physical possession of the plot was never offered to the complainants, for which they had paid entire sale consideration  and when possession was offered in August 2014, they had been running behind Opposite Parties No.1 and 2, to complete the basic amenities, but they failed to do so.  Not only this, since it has been held by this Commission, that offer so made by Opposite Parties No.1 and 2, was nothing but a paper possession, and till date the complainants  are empty handed as neither actual physical possession of the plot was delivered, for want of development work; basic amenities at the site, as also the entry points had been sealed by the Forest Department, as they  failed to take requisite permissions/sanction from it, nor amount deposited was refunded to them alongwith interest, as such, there is continuing cause of action, in favour of the complainants, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for  Opposite Parties No.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.

24.             The next question, that falls for consideration, is, as to whether, the complainants are entitled to the refund of amount of Rs.42,52,051/-, deposited by them, towards the price of said plot. It may be stated here, that, in the first instance, it has been proved on record, and also an admitted fact that Opposite Parties No.1 and 2 have failed to discharge their part of the contract in not offering possession of the plot, in question, within the stipulated time for want of development and basic amenities and development at the site. The offer was made in August, 2014 i.e. after a huge delay has also proved to be paper possession because  Opposite Parties No.1 and 2  have not taken requisite permissions/sanctions from the Forest Department, as a result whereof, entry points of the project have been sealed, stating to be “illegal access”, which fact is apparent from the letter dated 15.04.2015, and their admission before the National Commission on 14.09.2016, referred to, in earlier part of this order.  Thus, in these circumstances, mere offer of paper possession of plot, and that too after a long delay of about four years, will not disentitle the complainants, to claim refund of amount deposited by  them. Even otherwise, if it is assumed for the sake of arguments (though not proved) that had possession of the plot in question, offered to the complainants, vide letter dated 14.01.2014 i.e. after a delay of about four years was genuine, even then the complainants were not bound to accept the same. It is well settled law that non-delivery of possession of the property sold by a builder, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not case of Opposite Parties no.1 and 2 that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other legal and valid reason. No plausible reason has been assigned by Opposite Parties no.1 and 2, as to why they failed to deliver possession of the unit, by the stipulated date. Delay could only be condoned, under the terms and conditions of the Agreement, if there exists any plausible 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 our considered opinion, the complainants are entitled to the refund of amount of Rs.42,52,051/-, deposited by them, towards price of the said plot, because they were caused financial loss. 

25.             Hard-earned money, deposited by the complainants, towards the plot, in question, was utilized by Opposite Parties No.1 and 2, for a number of years. In case of delay, in deposit of installment(s),  Opposite Parties No.1 and 2  had been charging interest @15% P.A., compounded at the time of every succeeding installment, from the complainant, as per Clause 3 of the Agreement. It is, therefore, held that  Opposite Parties No.1 and 2, by neither delivering actual physical possession of the plot, in question, nor refunding the amount to the complainants, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainants, are, thus, entitled to the refund of Rs.42,52,051/-, alongwith interest compounded @15% p.a., from the respective date of endorsement i.e. 23.08.2010 onwards.

26.              In view of above facts of the case, Opposite Parties No.1 and 2 are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

27.             As far as the plea taken by Opposite Parties No.1 and 2, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties no.1 and 2) case, that they were ready with possession of the plot to be delivered to the complainants but they wanted to rescind the contract, on account of some inevitable circumstances/financial constraints or for any personal reason, and are seeking refund of the amount deposited. The complainants have waited for a long period of about 5 years and when they saw that possession of the plot cannot be handed over to them, only then they approached by way of this Commission. The complainants have placed on record ample evidence to prove that even as on today, Opposite Parties No.1 and 2 were not ready to deliver possession of the plot purchased by them.  In this view of the matter, the plea taken by Opposite Parties No.1 and 2, in this regard, has no legs to stand and is accordingly rejected.

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

29.             For the reasons recorded above, the complaint is partly accepted, with costs.  Opposite Parties No.1 and 2  are jointly and severally held liable and directed as under:-

1. To refund the amount of  Rs.42,52,051/-, to the complainants, alongwith interest compounded  @15 % p.a. from the date of endorsement of the unit i.e. 23.08.2010 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 compounded @18% p.a.,  instead of @15% p.a. compounded from the date of endorsement of the unit onwards, and interest compounded @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

30.             Complaint qua Opposite Party No.3, is dismissed, with no order as to costs, as neither deficiency in rendering service and adoption of unfair practice has been proved against it, nor any allegation with regard to the same, has been levelled by the complainant.

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

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

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

Pronounced.

April 5,  2017

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

 [PADMA PANDEY]

          MEMBER

 Rb.