Chandigarh

StateCommission

CC/49/2017

Suresh Kumar Sharma - Complainant(s)

Versus

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

Jasjit Singh Rattu, Adv.

18 Apr 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	49 of 2017
Date of Institution	:	14.01.2017
Date of Decision	:	18.04.2018

 

Suresh Kumar Sharma s/o Late Sh.R.C.Sharma, resident of 253, Tower 2, 5^th Floor, ATS Golf Medows, Perluda Barwala Road, Dera Bassi, Mohali at present resident of House No.652, Sector 21, Panchkula.

……Complainant

V e r s u s

1.  M/s Emaar MGF Land Private Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh - 160017, through its Managing Director.
2. M/s Emaar MGF Land Private Limited, ECE House, # 28, Kasturba Gandhi Marg, New Delhi, through its Directors.

                                                    .... Opposite Parties                                                  

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh. J.S.Rattu, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

                The facts, in brief, are that the Opposite Parties floated a scheme for allotment of residential plots under the name and style of “Mohali Hills – inspited living”. It was stated that the officials of the Opposite Parties started promoting the scheme much before the actual drawings were made and even before the actual grant of license to develop the land was granted. The complainant booked a plot of 300 sq. yards with the Opposite Parties and paid the registration amount of Rs.5 lacs. Thereafter, the Opposite Parties allotted unit bearing No.108-PP-417-300 in their project vide provisional allotment letter dated 26.12.2014 (Annexure C-2). The basic sale price of the plot including EDC was fixed at Rs.45,17,000/-. Plot Buyer’s Agreement was executed between the parties on 07.01.2015 (Annexure C-9). The complainant paid the total amount of Rs.11,29,275/- (Rs.10,68,750/- towards basic sale price and Rs.60,525/- towards EDC). It was further stated that at the time of sale of the plot, the Opposite Parties gave a layout plan (Annexure C-10), wherein, a 40ft metalled road shown in front of the line of plots but instead of 40 ft. road, only 10-15 ft. road was there. When the Opposite Parties were asked, they were assured to provide the same but now after waited so many months, the Opposite Parties dilly delaying the matter on one pretext or the other. It was further stated that the complainant being a senior citizen cannot thought to live there, due to lack of safety and basic amenities. It was further stated that at the time of booking, the Opposite Parties promised to hand over possession of the plot within time frame of 18-24 months. The Opposite Parties sent letter of possession dated 20.01.2016 (Annexure C-11), without completing the internal development work. Even the land in front of the plot is still agricultural land, which is not in possession of the Company.   It was further stated that club membership charges, maintenance charges & electrification charges were wrongly demanded by the Opposite Parties, as there is no facility. It was further stated that EDC was also not payable, as no external development done by the Opposite Parties. It was further stated that no proper approach road, electric line, sewerage, water line was there upto the plot of the complainant.  The Opposite Parties promised it to develop as a world class city with premium infrastructural facilities like hospitals, schools, clubs, community centres, parks, shopping malls, movie halls etc. within the city. However, the Opposite Parties failed to provide the aforesaid facilities and amenities. 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 the admitted fact that unit bearing No.108-PP-417-300 was provisionally allotted   on 26.12.2014 and Buyer Agreement was executed between the parties on 07.01.2015. It was stated that the total sale consideration of the plot was Rs.45,17,100/-, out of which, the complainant deposited an amount of Rs.11,29,275/-. It was further stated that the Opposite Parties duly offered possession of the unit vide letter dated 20.01.2016 and, thereafter, numerous demand and reminders were sent to the complainant to clear the due amount and to take possession thereof but the complainant ignore the same and did not remit the same. It was further stated that the complainant did not fall within the definition of “consumer”, as envisaged under the Consumer Protection Act, 1986, as he is residing in his own house i.e. ATS Golf Medows, Dera Bassi, Mohali and the unit purchased by him in the project of the Opposite Parties solely for speculation purposes. It was further stated that this Commission has no pecuniary as well as territorial jurisdiction to try this complaint. It was further stated that as per Clause 8(a) of the Agreement, it was proposed to hand over possession within 18 months but not later than 24 months from the date of signing of the Agreement. The said period expired on 06.01.2016 (in fact 06.01.2017), however, the Opposite Parties already offered possession to the complainant on 20.01.2016 i.e. within a period of only 12 months from signing Agreement. It was further stated that the complainant himself is a defaulter and not paid the due amounts, as per schedule of payment. It was further stated that the parties are bound by the terms and conditions of the Agreement, in which, in case of failure of the allottee to perform all obligations as set out in the Agreement, the allottee has authorized the Company to forfeit the earnest money, as stipulated in Clause 2(f) of the Agreement  alongwith any interest paid, due or payable, any amount of non-refundable nature. It was further stated that the Opposite Parties have also duly obtained all the necessary approvals from the concerned authorities. It was further stated that 40ft. road as alleged by the complainant was never promised. It was further stated that all the amenities are complete with regard to unit of the complainant and many families are living happily in the project and more than 580 registrations done till date. The complainant is making baseless allegations just to justify his demand of refund of amount. It was further stated that all the necessary approvals were obtained from the competent authorities. It was averred that earlier the project of the Opposite Parties was exempted from seeking completion certificate, as it was a mega project and now in September, 2014 only the Govt. of Punjab sought all the builders to apply for partial completion certificate, which was obtained by them on 16.10.2015 (Exhibit OP-7). It was further stated that the alleged case with forest department has come to an end as case has been withdrawn by Forest Department and the allegations leveled herein are not more sustainable. 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 Mrs.Anjani Dass Vs. DLF Universal Limited, Complaint Case No.295 of 2017, decided on 19.07.2017. Para No.12 of the said order, inter-alia, being relevant, is extracted hereunder:-

“12.  At the time of arguments, it was also argued by Counsel for the opposite parties that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication.

                We are not going to agree with the argument raised. This Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126 has already elaborately dealt with this question, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as 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), 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), and held that even in the face of existence of arbitration clause in an Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Furthermore, under similar circumstances, 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, held as under:-

“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.”

Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-

“We are unable to persuade ourselves to agree with the Learned Counsel.  In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon’ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon’ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors.  (Supra) still holds good, no fault can be found with the view taken by the State Commission. 

Consequently, the Appeal fails and is dismissed accordingly.”

                Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

                In view of the above, argument raised by Counsel for the opposite parties, in this regard, being devoid of merit is rejected.”

             

            Against the order passed by the larger Bench of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, M/s Emaar MGF Land Limited filed Civil Appeal No.(s) 23512-23513 of 2017 in Hon’ble Supreme Court of India, which was also dismissed.

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

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

              According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident from the record, that Plot Buyer’s Agreement was executed between the parties on 07.01.2015 at Chandigarh (Annexure C-9). Not only this, documents (Annexures C-1, C-2, C-6, C-7 &  C-11) 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. 

8.           Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection.  In the present case, even if the interest component is added to the amount claimed/price of the unit, the case is well within the pecuniary jurisdiction of this Commission. 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.

9.           The next question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. Counsel for the Opposite Parties stated that the complainant did not fall within the definition of “consumer”, as envisaged under the Consumer Protection Act, 1986, as he is residing in his own house i.e. ATS Golf Medows, Dera Bassi, Mohali and the unit purchased by him in the project of the Opposite Parties solely for speculation purposes. On the other hand, Counsel for the complainant submitted that the complainant being a senior citizen purchased the said unit for residential purpose but due to lack of basic amenities etc. he failed to take possession of the same. Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is property dealer. 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  complainant purchased the property for speculation purposes, as such, he did not fall within the definition of a consumer, cannot be taken into consideration. Further, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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 this, recently in a case titled as  Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-

“In the case of the purchase of the houses 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 had 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.”

 

 

               

                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  Counsel for the Opposite Parties, therefore, being devoid of merit, is rejected.  

10.          The next question, that falls for consideration, is, as to whether the Opposite Parties offered possession of the unit/plot, in question, to the complainant, complete in all respects or not. As per Clause 8(a) of the Agreement, possession of the unit was to be delivered to the complainant within a period of 18 months from the date of execution of the Agreement but not later than 24 months. So, the period of 24 months from the date of execution of the Agreement dated 07.01.2015 has expired on 06.01.2017. At the time of arguments, Counsel for the Opposite Parties took a plea that letter of intimation was sent to the complainant vide letter dated 20.01.2016 (Annexure C-11) i.e. about one year before the date of delivery of possession, as per the Agreement but the complainant himself did not take the possession and did not pay the requisite due amount. On the other hand, Counsel for the complainant stated that the possession offered by the Opposite Parties is only intimation of possession and not proper possession because when the complainant visited the site, he found that there was no development. Even the complainant in his complaint has specifically stated that 40 ft. side road nowhere existed, where the plot of the complainant is situated; land in front of the plot of the complainant is still agricultural land ; facilities like electricity & water are not available ; no completion certificate ; no proper approach road ; no electric line ; no sewerage and no water line up to the plot of the complainant. He further submitted that the Opposite Parties also promised to develop world class city with premium infrastructural facilities like hospital, school, club, community centre, parks, shopping mall, movie hall etc. within the city but the Opposite Parties failed to provide any such facilities and amenities. He further argued that even in the front of the complainant’s plot there are open field and the so called society is not even gated as committed by the Opposite Parties. Counsel for the complainant further argued that due to commitment of possession vide letter dated 20.01.2016, the complainant sold the dera bassi house and shifted to Sector 21, Panchkula.  As such, the Opposite Parties are not in a position to give physical possession of the plot. A bare perusal of possession letter (Annexure C-11) clearly shows that the gullible consumer was lured by the Opposite Parties stating that development work of the project is complete. The relevant portion of the said possession letter dated 20.01.2016 (Annexure C-11) reads thus :-

“This has reference to the captioned plot allotted to you in the Project. We are pleased to inform you that the process of handing over of the plots in Sector – 108, Mohali Hills shall commence within 60 days of this letter, as your plot is ready to be handed over for possession.

X x x x xx “

From the afore-extracted paragraph, it is clearly proved that it is only an intimation of possession letter and not actual possession letter because after intimation of possession letter, the Opposite Parties failed to send any letter to the complainant regarding actual physical possession of the plot, in question. It is evident from the zimini order dated 16.06.2017 that during the pendency of this complaint, Counsel for the complainant stated that when possession was offered to him on 20.01.2016 none of the amenities were available at the site. The said averment was seriously disputed by Counsel for the Opposite Parties. Therefore, Counsel for the Opposite Parties was directed to file an affidavit of a responsible officer stating when possession was offered, the amenities regarding water, permanent electric connection, roads, storm water arrangement, STP etc. were available at the site or not. Completion date of all the amenities, referred to above, be also mentioned. In compliance to the order dated 16.06.2017 passed by this Commission, Counsel for the Opposite Parties filed affidavit of  Sh.Subrat Kumar Pradhan, Authorized Representative of Emaar MGF Land Limited, the relevant portion of the said affidavit reads thus :-

“A. Water-CGWA permission dated 06.12.2007 and                  renewal dated 27.03.2017.

(photocopy is annexed as Annexure – R/A (colly.)).

B.Permanent Electric Connection – Load of 1100 kva released dated 19.08.2013 and subsequent Bank Guarantee.

(photocopy is annexed as Annexure – R-B (colly.)).

C.Storm Water –service plans approved dated 09.02.2010.

(photocopy is annexed as Annexure R-C).

D.STP – Consent to operate dated 27.06.2013 and 17.04.2014.

(photocopy is annexed as Annexure R-D(colly.)).

E.Roads – layout approved dated 15.12.2014.

        (photocopy is annexed as Annexure R-E).”

 

From the afore-extracted information provided by the Opposite Parties, it is not clear that whether they are operational or not and only dates of approval has been mentioned. 

              It is pertinent to note that the Opposite Parties  (Emaar MGF) filed appeal in another case i.e. First Appeal bearing No. 709 of 2016 titled as ‘Emaar MGF Land Limited Vs. Mandeep Saini’ before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, against the order of this Commission and the Hon'ble National Consumer Disputes Redressal Commission, New Delhi passed the order dated 14.09.2016, which reads thus :-

“x x x x xx

It is vehemently argued by Mr.Aditya Narain, learned counsel appearing for the Appellant that since the delay in delivery of possession of the flats in Sectors 104, 106, 108 and 109 is directly attributed to the sealing of the main access road to these Sectors 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 flats 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 flats with proper access, to the Complainants, we direct that the Appellant shall deposit in this Commission the principal amount(s) deposited by the Complainants with them, within 6 weeks from today.  On deposit of the said amount(s), it will be open to the Complainants to withdraw the said amount, on filing affidavits, undertaking to this Commission that they will refund the amount(s) withdrawn, if so directed at the time of final disposal of the Appeals.  Subject to the said deposits, the operation of the remaining directions, regarding interest, compensation, etc., in the impugned order shall remain stayed.

X x x x x xx x”

From the afore-extracted order, it is clearly proved that Counsel for the Opposite Parties admitted before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the delay in delivery of possession to these Sectors i.e. Sectors 104, 106, 108 & 109 was due to the sealing of main access road by the Forest Department. It is clearly proved that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi 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 i.e. Emaar MGF Land Limited is still not in a position to deliver possession of the fully developed flats with proper access, to the complainant(s) i.e. till the passing of the afore-extracted order dated 14.09.2016. So, we are of the view that in the present case, the possession offered by the Opposite Parties is only on 20.01.2016 (Annexure C-11) is merely a paper possession and not more than that, so the complainant was not bound to accept the said possession.

11.          The next question, that falls for consideration, is, as to whether, the complainant is entitled for the refund of the amount of Rs.11,29,275/- as deposited by him. It is evident from statement of account (at page No.70 of the file) that an amount of Rs.11,29,275/- was deposited in respect of the unit, in question. Thereafter, the complainant did not pay the amount because when he visited the site, he found that basic amenities were not complete. Therefore, the Opposite Parties failed to deliver  actual physical possession of the unit, complete in all respects, to the complainant and the letter of possession sent by the Opposite Parties is only an intimation regarding possession not more than that. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the 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.

12.         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.11,29,275/-, 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 alongwith interest @9% p.a., from the respective dates of deposit, till realization. 

13.         As far as the plea taken by the Counsel for the Opposite Parties, at the time of arguments, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that they were ready with actual physical possession of the plot, complete in all respects, to be delivered to the complainant. It is, no doubt, true that the complainant only deposited an amount of Rs. 11,29,275/- in respect of the plot, in question because when he visited the site, he found lack of certain amenities, therefore, he did not deposit the further amount. Had this been the case of the Opposite Party, that it was willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.

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

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

1. To refund the amount of Rs.11,29,275/- to  the  complainant, alongwith interest @9% p.a.,  from the respective  dates  of  deposits onwards.
2. To  pay  compensation,  in the sum   of       Rs.50,000/-, for causing mental agony and physical harassment, to the complainant.

 

3. To pay cost of litigation, to the tune of Rs.22,000/- to the  complainant.

 

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 @12% p.a.,  instead of @9% p.a. from the date of default, and interest @9% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

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

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

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

Pronounced.

April 18^th, 2018.                                     Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

rb