Chandigarh

StateCommission

CC/845/2016

Gurjit Singh Gill - Complainant(s)

Versus

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

Sandeep Bhardwaj, Adv.

04 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	845 of 2016
Date of Institution	:	25.11.2016
Date of Decision	:	04.05.2017

 

Gurjit Singh Gill S/o Sh. Kulwant Singh Gill, Corresponding Address House No.2475/1, Sector 79, Mohali, Punjab.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Private Limited (Mohali Hills), 1^st Floor, Sector 17-C, SCO No.120-122, Chandigarh- 160017, through its Managing Director/Director / Authorized Representative.
2. M/s Emaar MGF Land Private Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001,  through its Managing Director/Director/ Authorized Representative.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Sandeep Bhardwaj, Advocate for the complainant.

Sh.  Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainant in the year 2009 came from America alongwith his family and he had no residential house for his own use and, as such, he was looking for a residential property. For the said purpose, the complainant approached the Opposite Parties to purchase a residential independent plot and also a penthouse for his own use and for the use of family members. The Opposite Parties allured the complainant about salient features of the said project and also allured to purchase the plot in Sector 99 and a penthouse in Sector 105. The Opposite Parties also assured that they have all the necessary approvals/sanctions and possession  would be delivered within less than 12 months from the date of Agreement. Believing on the assurances made by the Opposite Parties, the complainant moved an application for allotment of a plot measuring 190 sq. yards, Sector 99, Mohali Hills, Mohali, Punjab. Thereafter, the Opposite Parties issued a provisional allotment letter dated 08.02.2011 (Annexure C-1), wherein, plot No.9, Sector 99 was allotted to the complainant. As per the provisional allotment letter, after giving discount, the total sale consideration of the unit, in question, to the tune of Rs.44,40,490/-. It was stated that the complainant paid the booking amount in time vide receipt (Annexure C-2). It was further stated that after number of emails were exchanged between the parties, the Buyer Agreement was executed between the parties on 14.11.2011 (Annexure C-8). As per Clause 8 of the Agreement, possession was to be delivered to the complainant within a period of 12 months i.e. by 13.11.2012. The complainant made the payment of installments on time to the Opposite Parties vide receipts (Annexures C-9 to C-12). It was further stated that the complainant paid 95% of the sale consideration in time and, however when he visited the site to see the development, he was surprised to see that it has been put to halt.  The complainant kept on visiting the site but he did not find any development there. The complainant was shocked to see that even basic amenities such as roads, electricity, STP, parks, rain harvesting system etc. were not in existence at the site. The matter was taken up with the Opposite Parties a number of times but nothing positive came out. Thereafter, the complainant sent an email dated 13.02.2013 (Annexure C-13) to the Opposite Parties to know the status of possession of the unit. It was further stated that the complainant, after expiry of approximately two years from the agreed date of possession, received an intimation of possession, wherein, the Opposite Parties demanded an amount of Rs.4,22,884/- under different heads, which was objected to by the complainant vide letter dated 17.02.2014. Copies of intimation of possession letter and reply dated 17.02.2014 are Annexures C-14 & C-15. It was further stated that the Opposite Parties sent a letter dated 21.02.2014 and duly admitted the deficiencies and justified their demand raised in intimation of possession (Annexure C-16). It was further stated that the Opposite Parties without obtaining the requisite permissions and approvals started demanding the amount. The complainant immediately replied vide letter dated 22.02.2014 and informed about not taking the possession due to non-availability of water, electricity and incomplete sector approach road and street carpeting (Annexure C-17). The complainant also sent email dated 22.02.2014 (Annexures C-18 & C-18/1) mentioning about non-availability of water and electricity and also disputing the charges, but no reply was received. As such, the complainant again wrote an email dated 19.04.2014 (Annexure C-19) asking about sanction letter from GMADA for electricity and water supply connection but the Opposite Parties did not reply. Therefore, the complainant requested the Opposite Parties to refund the amount through email dated 03.07.2014 (Annexure C-20) but no response was received. It was further stated that the Opposite Parties sent a letter dated 10.11.2015, wherein, the earlier demand was increased to Rs.9,26,503/- by adding some charges (Annexure C-21). The complainant wrote about waiving off the un-necessary charges vide letter dated 08.08.2016 but no response was given and, as such, final letter dated 21.08.2016 was again written by the complainant (Annexures C-22 & C-23). Thereafter, the complainant again wrote emails (Annexures C-24 to C-27) but nothing was done. It was further stated that the Opposite Parties issued only paper possession without getting the basic amenities and completion certificate from GMADA. In this regard, the complainant has also placed on record certain informations obtained through RTI and letter(s), which are annexed as Annexures C-28 to C-44. Not only this, there is no motor road connectivity to main road via all connecting sectors including the present Sector 99 at the time of sending the intimation of possession. The complainant also took photographs, which are Annexures C-45/1 to C-45/12. It was further stated that the Opposite Parties recently in number of cases admitted that they have not obtained certain permissions from the Government and their project is sealed and is still under litigation in Civil Court, Kharar. Due to non-delivering of possession of the unit, complete in all respects or refunding the amount to the complainant, the complainant suffered a lot because monthly rent is being paid, for which, the receipts are also attached with the complaint. 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 complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.           The Opposite Parties, in their written version, have taken objection regarding arbitration clause in the Agreement, and also they separately moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was stated that the complaint is time barred, as it has been filed more than two years after accrual of alleged cause of action i.e. 03.02.2014 when possession was offered. It was further stated that intimation of possession was admittedly sent to the complainant on 03.02.2014 upon completion of amenities, as mentioned in the Agreement. However, the complainant has not taken possession for the reasons best known to him. The complainant has not led any evidence to prove that the area was not developed when possession was offered. It was further stated that this Commission  has no territorial jurisdiction to entertain the complaint, as the property is located at Mohali and the registered office of the Opposite Parties is at New Delhi and as per settled law, a Company can be sued only at the place where its registered office is located. It was further stated that this Commission has no   pecuniary    jurisdiction    to    entertain    the    complaint,   as    the    claim    value together    with    reasonable   interest   including   rent amount   of Rs.6,72,000/- and compensation exceeds Rs.1 crore. It was further stated that the complainant vide emails dated 08.08.2016 (at page no.91 of the complaint) and 15.10.2016 (at page No.97 of the complaint) stated that he was ready to take possession subject to waiver of holding, club charges and DPC. Even though request was without basis, the Opposite Parties as a gesture of goodwill                                          

waived the club charges and DPC subject to furnishing of indemnity. The complainant never submitted the indemnity nor did he take over possession despite such waivers. It was further stated that the complainant is a resident of House No.2475/1, Sector 79, Mohali, Punjab, which apparently shows that the complainant is already having a house in his name. It was further stated that the complainant apart from impugned plot bought another unit with the Opposite Parties, as such, he purchased the said unit for commercial purposes/speculation and did not fall within the definition of “Consumer” as envisaged in the Consumer Protection Act, 1986. It was further stated that as per Clause 8 of the Agreement, the Company shall “endeavour” to deliver possession, which means to try/make effort. Thus, there was no definitive agreement stating that possession would definitely be delivered within 12 months. In the present case, intimation of possession was sent to the complainant on 03.02.2014 and reminders sent to them (Exhibits OP/3 colly.). It was admitted regarding booking of the unit, execution of the Agreement and receipt of the amount of Rs.42,35,670/-. It was further stated that all the emails and letters were duly replied by the Opposite Parties. It was averred that all the amenities, as per the Agreement, have been completed and internal roads, water, sewerage and electrical lines had been laid, in the area, where the plot of the complainant is situated and only then possession has been offered. It was further stated that vide letter dated 10.11.2015 statement of dues was sent to the complainant which includes demand of stamp duty and registration, as per the revenue department norms. The Opposite Parties also annexed copies of emails, which was sent to the complainant (Exhibit OP/6 colly.). It was further stated that there was no alleged sealing in Sector 99 where his plot is located. It was further stated that the Opposite Parties already obtained Partial Completion Certificate by way of abundant caution even though it is exempt from the provisions of the PAPRA Act and are not required to obtain completion certificate. It was further stated that possession was offered to the complainant, after completion of the basic amenities and in case the complainant seeks refund of the amount then forfeiture clause would be applicable, as per 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, nor they indulged into unfair trade practice.

3.           The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

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

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

6.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

25.        The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

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

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

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

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

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

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

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

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

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

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

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

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

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

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

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

34.        Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

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

35.     In  view of the above, the plea taken by the opposite party, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.”

            In view of the above, the objection raised by Counsel for the Opposite Parties, being devoid of merit, is rejected.

7.             The objection taken by the Opposite Parties, to the effect that the complainant did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act as they are resident of House No.2475/1, Sector 79, Mohali, Punjab, which shows that he is already having a house and the another plot, in question, purchased by him is only for commercial purposes/speculation, also deserves rejection. It is pertinent to note that the complainant in para No.4 of the complaint stated that the complainant is a Group Project Manager and his wife is working as Assistant Professor in the GGSCW, Sector 26, Chandigarh and in the year 2009, the complainant came from America alongwith his family and he has no residential house for his own use and for the use of family members, as such, he was looking for a residential property for his own use and for the use of family members. The complainant further stated that he has one minor son and one major daughter, as such, he planned to use all his savings to have residential house for his own use in order to secure the future of his minor son and daughter. He further stated that since the complainant and his wife were permanently working at Chandigarh, as such, he planned to buy a residential house in and around Chandigarh. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Parties, mere bald assertion i.e. simply saying that the  said unit purchased by the complainant only for speculation/commercial purposes, as such, he 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. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015, decided on 14 Sep. 2016”, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or hand purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainant, thus, falls 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. 

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 complainant, 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-8) was executed between the parties on 14.11.2011, at Chandigarh. Not only this, the provisional allotment letter (Annexure C-1), Schedule of payment, receipt (Annexure C-2), acknowledgment-cum-receipt (Annexures C-9 to C-12) and letter of intimation of possession dated 03.02.2014 (Annexure C-14) were sent by the Opposite Parties from their Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

9.           Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection.  As per admitted facts, the complainant sought refund of amount of Rs.42,35,670/-, rent of Rs.6,87,000/- paid by him, compensation of Rs.5 lacs and litigation expenses to the tune of Rs.1 lac. It is argued by Counsel for the Opposite Parties that if the 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. This issue, whether interest is to be counted when looking into pecuniary jurisdiction of this Commission, came up for consideration in the case of Surjit Singh Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, wherein, after noting similar objections it was observed as under:-

““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.”

              In view of above, this objection taken by the Opposite Parties that this Commission lacks pecuniary jurisdiction, being devoid of merit, fails and the same stands rejected.

10.          The next question that falls for consideration is as to whether, offer of possession made by the Opposite Parties, to the complainant, vide letter dated 03.02.2014 (Annexure C-14), in respect of plot bearing No.99-EP-09-190 in Block EP situated at Sector 99,  Mohali Hills (Project), could be said to be genuine offer or not. It is the admitted fact that the complainant booked the plot in the project of the Opposite Parties vide application dated 01.02.2011 and plot No.99-EP-09-190 was allotted to the complainant vide provisional allotment letter dated 08.02.2011 (Annexure C-1). Plot Buyer’s Agreement was executed between the parties on 14.11.2011 (Annexure C-8). It is pertinent to note that the said Agreement was executed between the parties after the delay of about 9 months, when the complainant sent email dated 19.04.2011 (Annexure C-3) and letter dated 10.08.2011 (Annexure C-5). As per Clause 8 of the Agreement, possession of the said plot was to be delivered within a maximum period of 18 months from the date of execution of the Agreement i.e. latest by 13.05.2013 and not more than that.

              According to the Counsel for the Opposite Parties, possession of the said plot was offered to the complainant vide intimation of possession letter dated 03.02.2014 (Annexure C-14) after completion of amenities, but he did not come forward to take possession of the said plot, in question.

              On the other hand, as per the complainant, the Opposite Parties offered possession vide the aforesaid letter, without completion of amenities, at the site because number of emails/letters were exchanged between the parties in this regard, vide which, it is clearly proved that the said possession is only a paper possession.

              After going through the record, we are not agreeable with the contention of the Counsel for the Opposite Parties because after receipt of the possession letter, the complainant sent a letter dated 17.02.2014 (Annexure C-15) to the Opposite Parties, in which, it has been clearly stated that “We have visited the place after receiving this letter that place is not ready to possession. That place is not approachable at all and not possession ready.” From the aforesaid letter, it is clearly proved that after visit the site, the complainant observed that the said place is not approachable and possession is not ready. The complainant also sent a letter dated 22.02.2014 (Annexure C-17) to the Opposite Parties, in which, he refused to take possession due to the following reasons :-

• Unavailability of water supply
• Unavailability of electricity supply
• Incomplete sector approach and street carpeting (to my plot).

The complainant in the aforesaid letter further intimated to the Opposite Parties that  “It is extremely sad to find that Emaar MGF is delivering the possession of the plot without completing the work on basic amenities required for constructing the plot.” Not only this, the complainant further sent email dated 03.07.2014 (Annexure C-20) to the Opposite Parties. The relevant portion of the said email reads thus :-

“we received demand of Rs.178641 at the time of intimation of possession, which includes couple of charges like electrification etc. when we visited that place it was not possession ready at all x x x x x x x x

We will not going to make payments until we get our enquiries answered, if you cannot then please REFUND OUR MONEY WE ARE NO MORE INTERESTED INVESTING IN YOUR PROJECT. SORRY TO SAY YOU ARE NOT UPTO THE STANDARDS YOU WERE TALKING ABOUT AT THE TIME OF SELLING YOUR PROPERTY.”  

The complainant further sent email dated 08.08.2016 (Annexure C-22) to the Opposite Parties. The relevant portion of the said email reads thus :-

“We visited your site office at Sector 105 on Aug 6 Saturday to initiate the process of property possession (#99-EP-09-190) and registration.

X x x x x

We could not take the property possession earlier as there were no electricity and water connections available, and even for some period of time carpeting of the road to the plot was also not complete. Even today the property parks are not maintained, and area is not in a livable condition. When this property was sold to us, there was no mention of the club and any associated charges. x xx x x x xx”

Strangely, the Opposite Parties vide email dated 08.08.2016 (Annexure C-23) sent to the complainant, which reads thus :-

“x x x x

Further please be informed that we have already initiated the possession process in tower G3 wherein your unit is located and letter of possession for your unit shall also be sent shortly x x x x x”

From the afore-extracted email sent by the Opposite Parties to the complainant, it is clearly proved that they have initiated the possession process and further assured to send the possession letter shortly. It means that actual physical possession of the unit, in question, was not sent to the complainant. Moreover, the complainant also pointed out the email dated 15.10.2016 (Annexure C-25). The relevant portion of the said email reads thus :-

“x x x x x

Company supposed to give possession after 18 months of booking i.e. August 2012. but we received intimation of possession on 03-feb-2014. We were offered possession the site was not possession ready at all there was no water supply and no electricity at that time. Some pics of site is attached for your information. X x x x x x”

The complainant also sent email dated 08.11.2016 (Annexure C-27) to the Opposite Parties seeking refund of the amount with interest etc. To prove the fact regarding lack of basic amenities at the site, the complainant also placed on record photographs (Annexures C-45/1 to C-45/12). The complainant also placed on record information obtained under RTI by other allottees, vide which, it is clear that the Opposite Parties failed to apply for completion certificate and only obtained partial completion certificate. At the time of arguments, Counsel for the complainant also placed on record information obtained by another allottee under RTI Act, 2005, dated 15.02.2017 from PSPCL, which reads thus :-

“The developer M/s Emaar MGF Land has been granted regular connection only in Sector 105 but has yet to be released regular connection in Sector 99 & 109 as per NOC approved for partial load demanded by the developer.x x x”

From the afore-extracted emails, it is clearly proved that the Opposite Parties failed to offer possession of the unit to the complainant, complete in all respects. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by the Opposite Parties, to prove that development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for Opposite Parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. It is relevant to mention here that the Opposite Parties in their intimation of possession letter in respect of plot No.99-EP-09-190 dated 03.02.2014 (Annexure C-14) informed the complainant that “process of handing over of the plots in Sector 99, Mohali Hills shall commence within 60 days of this letter, as your plot is ready to be handed over for possession.” A bare perusal of the aforesaid letter clearly reveals that the Opposite Parties only intimated the complainant regarding process of handing over of possession shall start within 60 days of this letter.  In the present case, according to the Agreement, the possession was to be delivered to the complainant within a maximum period of 18 months from the date of execution of the Agreement i.e. latest by 13.05.2013 but the Opposite Parties failed to deliver possession of the unit, complete in all respects, to the complainant, within the stipulated period, as mentioned in the Agreement and only offered possession vide letter dated 03.02.2014 i.e. after a delay of about 9 months that too was only a paper possession and not more than that because till their own email dated 08.08.2016, the Opposite Parties admitted regarding initiating the possession process and further assured to send the possession letter shortly. So, it is clearly proved that the said letter of intimation of possession dated 03.02.2014 is only a paper possession.

11.          The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, when the same was offered to him vide letter of intimation of possession dated 03.02.2014 (Annexure C-14), i.e. after a delay of about 9 months, and that too, in the absence of any force majeure circumstances. It may be stated here that non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Parties that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon`ble National Commission, held as under:-

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

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

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

 

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

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

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

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

12.          The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It is clearly proved from the aforesaid paras that the Opposite Parties failed to offer/deliver possession of the unit, complete in all respects, to the complainant within the stipulated period, as per terms and conditions of the Agreement and the possession offered by the complainant vide intimation of possession letter dated 03.02.2014 (Annexure C-14) i.e. only a paper possession and on the other hand, amount deposited was also not refunded to the complainant alongwith interest, when request for the same was made by him, as such, there is continuing cause of action, in his favour, 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). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for  the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

13.          Another objection raised at the time of arguments by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the unit within maximum period of 18 months, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 3 of the Agreement that possession of the unit will be delivered by the Opposite Parties, within a maximum period of 18 months from the date of execution of the Agreement, subject to force majeure circumstances or reason beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 3 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 18 months from the date of execution of the Agreement, as such, time was,  unequivocally made the essence of contract.

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

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

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

14.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.42,35,670/-, deposited by him. It is evident from the statement of account (Annexure C-46) that the complainant deposited the total amount of Rs.42,35,670/- in respect of the unit, in question.  It is an admitted fact that the  Opposite Parties are unable to deliver  possession of the unit, in question, complete in all respects, within the stipulated timeframe, as mentioned in the Agreement and the possession offered to the complainant vide letter dated 03.02.2014 in respect of the unit, is only a paper possession and not more than that. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit, in question. The  Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

15.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.42,35,670/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the  Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the  Opposite Parties were charging heavy rate of interest (compounded quarterly @24% p.a.) as per Clause 3 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  complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.42,35,670/-alongwith interest @15% compounded quarterly, from the respective dates of deposits till realization. 

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

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

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

1. To  refund   the  amount Rs.42,35,670/-, to  the complainant, alongwith interest compounded quarterly @ 15%, from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest compounded     quarterly @18%, instead of interest compounded quarterly @ 15%, from the date of default, and interest compounded quarterly @15%, on the  amounts mentioned at Clause (ii) & (iii), from the date of filing the complaint, till realization.

 

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

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

Pronounced.

May 4, 2017.                            

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [DEV RAJ]

MEMBER

 

 

(PADMA PANDEY)

        MEMBER

rb