Chandigarh

StateCommission

CC/35/2015

Rohitash Kumar - Complainant(s)

Versus

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

P.L. Garg, Sonal Datta, & Vikas Kumar Gupta

06 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Rohitash Kumar son of Shankar Lal, resident of House No.55, 1^st Floor, Sector 38-A, Chandigarh.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Private Limited, Registered Office: ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its General Manager/ Authorized Representative/Partner/MD.
2. M/s Emaar MGF Land Private Limited, First Floor, S.C.O. No.120-122, Sector 17-C, Chandigarh, through its General Manager/Authorized Representative/ Partner/MD.

              .... Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

Argued by:       Sh. P.L. Garg, Advocate for the complainant.

                        Sh. Ashim Aggarwal, Advocate for the Opposite       Parties.

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            The facts, in brief, are that M/s Quantum Pacific Projects (P) Ltd., applied to the Opposite Parties, vide application No.1441, for the allotment of a residential plot, measuring 300 square yards, in their proposed township under the name and style of Augusta Park, Sector 109, Mohali Hills, Mohali, Punjab, and paid a sum of Rs.10,35,000/-, as booking amount, on 20.09.2006. Receipt dated 23.09.2006 Annexure P-3, in this regard was issued by the Opposite Parties.   

2.       M/s Quantum Pacific Projects (P) Ltd., was allotted plot no.498, approximately measuring 300 square yards, in Augusta Park, Sector 109, Mohali Hills, Mohali, (hereinafter to be referred as plot No.109-AP-498-300) @ Rs.11,500/- per square yard. The basic price of the said plot was to the tune of Rs.34,50,000/-Apart from this amount, the allottee was also required to pay a sum of Rs.1,69,104/-, towards External Development Charges. Thus, the total sale consideration, in the sum of Rs.36,19,104/-, was required to be paid by the allottee, towards the said plot. Plot Buyer's Agreement dated 20.06.2007, Annexure P-1, in respect of the said plot was executed between M/s Quantum Pacific Projects (P) Ltd., and the Opposite Parties, at Chandigarh.
3.       It was stated that, subsequently, the complainant (Mr. Rohitash Kumar), purchased the said plot, from M/s Quantum Pacific Projects (P) Ltd., the original allottee. The amount, whatever, was paid by M/s Quantum Pacific Projects (P) Ltd.,  to the Opposite Parties was repaid to it, by the complainant. However, the remaining amount towards price of the said plot was paid by the complainant, directly, to the Opposite Parties. Accordingly, the Opposite Parties, vide endorsement dated 26.02.2010, transferred plot No.109-AP-498-300, in the name of the complainant-Mr. Rohitash Kumar. It was further stated that, in this manner, the rights and interest, in plot No.109-AP-498-300 were transferred, in favour of the complainant, by the Opposite Parties, as he stepped into the shoes of M/s Quantum Pacific Projects (P) Ltd.
4.       It was further stated that according to Clause 8 of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1, the Opposite Parties were to hand over physical possession of residential plot No.109-AP-498-300, in favour of the complainant, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement). It was further stated that it was also mentioned in Clause 8 of the said Agreement, that, in case, the Opposite Parties, failed to deliver possession of plot No.109-AP-498-300, within the stipulated period, they were liable to pay penalty/compensation, to the allottee, @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay. Thus, the Opposite Parties were to deliver possession of residential plot No.109-AP-498-300 to the allottee, latest by 19.06.2010. The possession was not offered to the complainant by 19.06.2010.
5.       It was further stated that the complainant approached the Opposite Parties, in the year 2010, and even thereafter, a number of times, with a request to deliver possession of plot No.109-AP-498-300, in his favour, but they failed to give any positive reply. It was further stated the complainant visited the site, a number of times, but was surprised to see that the land, where plot No.109-AP-498-300 was carved, was still under cultivation.
6.       It was further stated that, since the Opposite Parties were unable to deliver possession of plot No.109-AP-498-300, the complainant was offered the allotment of plot No.109-AG-557-300, in lieu of the same (plot No.109-AP-498-300), vide email dated 17.03.2011 Annexure P-10. It was further stated that since it was assured by the Opposite Parties that the complainant was not required to pay any extra amount, in respect of the relocated plot bearing No.109-AG-557-300, as also the possession thereof would be delivered at the earliest, he accepted the same.
7.       It was further stated that, on the other hand, the Opposite Parties, vide letter dated 11.08.2014 Annexure P-12, instead of delivering possession of the relocated plot bearing No.109-AG-557-300, demanded another amount of Rs.15,99,624.374Ps., under various heads.
8.       It was further stated that the Opposite Parties had not even applied/obtained the approvals/ sanctions, in order to complete the basic infrastructure, in respect of the project, in question. It was further stated that even the basic amenities like electricity, sewerage, roads etc. which were required daily to reside in any property/house, were not provided It was further stated that not only this, even the completion certificate was also not obtained by the Opposite Parties, in respect of the development of project, in question, from the Competent Authorities. It was further stated that necessary permissions/sanctions, in respect of the project, in question, were also not obtained by the Opposite Parties, which were mandatory under the . It was further stated that, as such, the claim of the Opposite Parties, that possession of relocated plot No.109-AG-557-300 would be delivered, complete in all respects by 19.06.2010, was totally false.
9.       It was further stated that the Opposite Parties collected the huge amount, towards price of the plot, in question, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 3 years, from 20.06.2007, but they did not abide by their commitment. It was further stated that, as such, the amount of Rs.38,37,149/-, deposited by the complainant, in the manner, referred to above, towards sale price of the plot, was utilized by the Opposite Parties, as a result whereof, he was caused a huge financial loss.
10.       It was further stated that since the Opposite Parties had not offered physical possession of relocated plot No.109-AG-557-300, complete in all respects, in favour of the complainant, he was not able to construct house thereon, and reside in the same. On the other hand, the complainant had been living in a rented house, meaning thereby that he was caused additional financial loss. It was further stated that, thus, the complainant underwent a lot of mental agony, physical harassment and financial loss, on account of non-delivery of physical possession of the fully developed relocated plot No.109-AG-557-300, to him.
11.       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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to withdraw the illegal demand made vide letters dated 11.08.2014 and 02.02.2015; refund the amount of Rs.38,37,149/-, alongwith interest @15% P.A., from the respective dates of deposits, till realization;  pay compensation to the tune of Rs.20 lacs, on account of  mental agony and physical harassment; and  cost of litigation, to the tune of Rs.50,000/-.
12.       The Opposite Parties, were served and put in appearance on 30.03.2015.  They filed their joint written version, on 27.04.2015. In the joint written version, it was pleaded by the Opposite Parties, that the complainant had not approached this Commission with clean hands. It was further pleaded that cause of action accrued in favour of the complainant, on 05.12.2011, when the complainant was offered possession of relocated plot No.109-AG-557-300, but he did not come forward to take the same. It was further pleaded that the complainant could file the complaint, within 2 years, from 05.12.2011. It was further pleaded that the complaint having been filed on 25.02.2015, was palpably barred by time. It was further pleaded that the consumer complaint was not maintainable before this Commission, as arbitration clause, existed, in the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1 and, in case of any dispute, the matter was to be referred to the Arbitration. The factum of allotment of plot No.109-AP-498-300, aforesaid, initially, in favour of M/s Quantum Pacific Projects (P) Ltd., and subsequent transfer thereof, in favour of the complainant was admitted. It was stated that, later on, the complainant was offered allotment of plot No.109-AG-557-300 in lieu of the original one only on the request made by him (complainant), vide letter dated 22.03.2011. It was further stated that since plot No.109-AG-557-300 was located preferentially, as such, the complainant was required to pay extra charges, in respect of the same. It was also admitted that the Opposite Parties had received the amount of Rs.38,37,149/-, as mentioned in the complaint, from the complainant, in the manner, referred to above. Execution of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1, between M/s Quantum Pacific Projects (P) Ltd., and the Opposite Parties, was also admitted. It was further stated that the complainant concealed the material fact that possession of the relocated plot No.109-AG-557-300 was offered to him, vide letter dated 05.12.2011 Annexure OP/2 (colly.), even prior to the agreed timeline provided in the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1, after providing the amenities, as per Clause 23 of the same (Agreement). It was further stated that the complainant was defaulter in making payments, as a result whereof, the Opposite Parties had to send numerous letters/reminders. It was denied that any arbitrary demand of amount, was made by the Opposite Parties, from the complainant. It was further stated that the Opposite Parties were exempted from the provisions of the Punjab Apartment and Property Regulation Act, 1995, and, as such, completion certificate was not required to be obtained, at the time of delivery of possession of relocated plot No.109-AG-557-300. It was further stated that necessary approvals/sanctions, in respect of the project, in question, had been obtained by the Opposite Parties, from the Competent Authorities. It was further stated that the project of the Opposite Parties did not fall under the . It was further stated that the amount demanded from the complainant, was legally due against him, towards final settlement. It was further stated that, in case, the complainant sought refund of the amount, deposited by him, towards relocated plot No.109-AG-557-300, he would lose considerable amount, on account of cancellation and forfeiture, as per Clause 2 (f) of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1. 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. The remaining averments, were denied, being wrong.
13.       In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
14.       The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
15.       The Opposite Parties, in support of their case, submitted the affidavit of Mr.Sachin Kapoor, their Senior Manager (Legal) and Authorized Representative, by way of evidence, alongwith which, a number of documents were attached. 
16.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 
17.       The first question, that falls for consideration, is, as to whether, the complaint was barred by time or not. No doubt, it was submitted by the Counsel for the Opposite Parties that the cause of action accrued to the complainant, when possession of the relocated plot No.109-AG-557-300 was offered to the complainant, on 05.12.2011, vide letter Annexure OP/2 (colly.). He further submitted that even the offer of possession was repeated vide letter dated 11.08.2014 Annexure P-12 but the complainant failed to take the same, for the reasons best known to him. He further submitted that since the complainant stepped into the shoes of M/s Quantum Pacific Projects (P) Ltd., original allottee, and, as such, he could file the consumer complaint, within a period of two years, from 05.12.2011. He further submitted that the consumer complaint, having been filed on 25.02.2015 was clearly barred by time. The submission of the Counsel for the Opposite Parties, in this regard, does not merit acceptance. It may be stated here that as per the version of the Opposite Parties, offer of possession was allegedly sent by them, vide letter dated 05.12.2011, Annexure OP/2 (colly.) to the complainant. No doubt, one courier receipt at page 68 of the file has been placed, on record, by the Opposite Parties, to prove that offer of possession, vide letter dated 05.12.2011, Annexure OP/2 (colly.), in respect of the relocated plot No.109-AG-557-300, was sent to the complainant through Overnite Express Agency. It may be stated here, that the said receipt neither bears the address of the complainant, nor the signatures of the complainant, acknowledging receipt of the document(s) sent through it (courier receipt). Even the date on the said courier receipt is mentioned as 9/12, from which it is not established, as to in which year, the same had been sent. On the other hand, in the rejoinder, alongwith affidavit, filed by the complainant, he, in clear-cut terms stated that letter dated 05.12.2011 Annexure OP/2 (colly.), was neither sent by the Opposite Parties, nor received by him. It is very pertinent to mention here, that according to Clause 36 of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1, all notices, referred to therein (Agreement), were required to be in writing and deemed to be properly given and served upon the party(s), if sent either by registered A.D. or speed A.D., on his/her respective address. Admittedly, letter dated 05.12.2011, Annexure OP/2, was not sent through registered A.D. or speed A.D. Under these circumstances, this letter, if allegedly sent, was in contravention of the provisions of Clause 36 of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1. Since this letter was never received by the complainant, the question of accrual of cause of action, in his favour, from that date (05.12.2011), did not at all arise. There was, thus, a continuing cause of action, in favour of the complainant. As such, the complaint, having been filed on 25.02.2015, could be said to be well within limitation. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, is rejected.     
18.       The next question, that falls for consideration, is, as to whether, the consumer complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the existence of an arbitration Clause in the Plot Buyer's Agreement   dated 20.06.2007, Annexure
    P-1.  With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, 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.”

19.       Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Plot   Buyer's Agreement dated 20.06.2007, Annexure P-1, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in  Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the  Opposite  Parties, being devoid of merit, must fail, and the same stands rejected.
20.       The next question, that falls for consideration, is, as to whether, the Opposite Parties were required to obtain the occupation and completion certificates, as envisaged by Section 14 of the PAPRA 1995. Section 14 of the PAPRA 1995 reads as under:-

“14. Occupation and completion certificate:- (1) It is the responsibility of the promoter:-

(i)         in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and

(ii)       in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all respects as per terms and conditions of the licence granted, to him under section 5.

(2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate”.

21.       Section 44 of the PAPRA 1995 reads as under:-

“44. Exemption:- (1) Subject to the provisions of section 32, nothing in this Act shall apply if the promoter is:-

(a)      a local authority or statutory body constituted for the development of land or housing: or

(b)     a company or a body created for development of land or housing or promotion of industry wholly owned and controlled by the State Government or the Central Government.

(2) If the State Government is of the opinion, that the operation of any of the provisions of this Act, causes undue hardship, or circumstances exist which render it expedient to do so, it may exempt, by a general or special order, any class of persons or areas from all or any of the provisions of this Act, subject to such terms and conditions as it may impose”.

22.       No doubt, in the normal course, the Opposite Parties were required to obtain occupation and completion certificates, under Section 14 of the PAPRA 1995. However, in exercise of the powers vested under Section 44(2) of the PAPRA 1995, and all other powers enabling him, to act in this behalf, the Governor of Punjab, was pleased to exempt the aforesaid Housing Project of M/s Emaar MGF Land Ltd/Opposite Parties, from the provisions of the Punjab Apartment and Property Regulation Act, 1995 (Punjab Act No.14 of 1995), except Section 32, which does not relate to the  subject matter, vide Notification Nos. 18/41/2006-5HG-II/7397 dated 11.08.2006, 18/41/2006-5HG-II/12790 dated 22.12.2006  and CTP (Pb) MPR. 2/594 dated 22.01.2008.    Once the exemption was granted, by the State Government, vide the Notifications aforesaid, to the project of the Opposite Parties, from the provisions  of the PAPRA 1995, it could not be said that, in the absence of occupation and completion certificates, legal possession of relocated plot No.109-AG-557-300 could not be handed over to the complainant. Had vide these Notifications, the project of the Opposite Parties, been not exempted, from the provisions of the PAPRA 1995, the matter would have been different.  In that event, there would have been some merit, in the submission of the Counsel for the complainant. It is, therefore, held that obtaining of the occupation and completion certificates, as envisaged by Section 14 of the PAPRA 1995, was not necessary, by the Opposite Parties, in respect of their project, in view of the exemption, having been granted to them, vide the Notifications, aforesaid. As far as the submission of the Counsel for the complainant, to the effect, that the project of the Opposite Parties falls under the , it may be stated here that nothing has been produced, on record, that their (Opposite Parties) project falls under the same (). The submissions of the Counsel for the complainant, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
23. The next question, that falls for consideration, is, as to within which period, the delivery of possession of relocated plot No.109-AG-557-300, was to be given to the complainant. According to Clause 8 of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver physical possession of the unit, in question, within a period of 24 months, from the date of execution of the same (Agreement), but not later than three years. It is, thus, evident, from this Clause, that the Opposite Parties were required to deliver possession of the unit, in question, in favour of  the complainant, within the maximum period of three years, from the date of execution of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1, i.e. latest by 19.06.2010. The factum that plot No.109-AP-498-300 had not been fully developed, with all the amenities, mentioned in the Plot Buyer's   Agreement dated 20.06.2007,   Annexure P-1, is further proved from email dated 17.03.2011, Annexure P-10, vide which, offer for relocation of the unit/plot,  was made by the Opposite Parties, and the complainant was finally relocated to plot No.109-AG-557-300. Had the earlier plot No.109-AP-498-300, possession whereof was to be delivered by 19.06.2010 been fully developed, and amenities, as mentioned in the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1, been provided, there would have been no question of relocation to plot No.109-AG-557-300,  in lieu of the earlier allotted plot in favour of M/s Quantum Pacific Projects (P) Ltd., and, later on, transferred in the name of the complainant, in the manner, referred to above. As held above, no possession was offered even of relocated plot No.109-AG-557-300. This fact also proved that development of relocated plot No.109-AG-557-300 Mohali, was not complete, in all respects, nor possession thereof had been offered to the complainant.
24.       No doubt, it was also submitted by the Counsel for the Opposite Parties, that since possession was repeatedly offered to the complainant, vide letter dated 11.08.2014 Annexure P-12, but he again failed to take the same, he could only be said to be entitled to the refund of amount, after forfeiture of 30% being earnest money, as per Clause 2(f) of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1. The Plot Buyer's Agreement, Annexure P-1, was executed between the parties, on 20.06.2007. According  to  Clause 8 of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1,  the Opposite Parties were to hand over physical possession of the residential plot, in favour of the complainant, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement). Admittedly, possession of the relocated plot No.109-AG-557-300 was not even offered or delivered to the complainant, by 19.06.2010 i.e. by the stipulated date. As far as submission of Counsel for the Opposite Parties that offer of possession was also made to the complainant, vide letter 11.08.2014 Annexure P-12 is concerned, it may be stated here that the same could not be, in any manner, said to be offer of possession, in respect of relocated plot No.109-AG-557-300. It was mentioned in this letter that the complainant was required to pay Rs.15,99,624.37Ps, towards various heads. Thus, it was just a demand letter sent by the Opposite Parties, for settlement of final dues, in respect of relocated plot No.109-AG-557-300. As stated above, in case, all the amenities, as provided in Clause 23 of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1, were existing at the site, where the plot, in question, is situated then the Opposite Parties were required to place on record, copies of the documents, relating to the same, which could be said to be in their possession. No document proving that the amenities had been provided, as per Clause 23 of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1, at the site, where relocated plot No.109-AG-557-300 of the complainant is situated, was produced by the Opposite Parties. Under these circumstances, an adverse inference could be drawn that had such documents been placed, on record, the same would have gone against the interests of the Opposite Parties. At the same time, it could very well be said that vide letter dated 11.08.2014 Annexure P-12, the Opposite Parties only allegedly offered paper possession, in respect of relocated plot No.109-AG-557-300. No shelter, under this document, can be taken by the Opposite Parties, that they actually offered physical possession of the plot, in question, complete in all respects, to the complainant, even on 11.08.2014. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
25.       As held above, possession of the relocated plot No.109-AG-557-300 was neither offered nor delivered to the complainant, even by the time, the complaint was filed. On the other hand, the amount of Rs.38,37,149/-, has already been received by the Opposite Parties, but possession of the relocated plot No.109-AG-557-300 was not delivered in favour of the complainant.  By making a misleading statement, that possession of the unit, was to be delivered within the maximum period of three years, from the  date of execution of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.
26.       Since, there was no development at the site, the Opposite Parties were unable to handover the legal physical possession of relocated plot No.109-AG-557-300, to the complainant even till the date of filing the complaint. No documentary evidence was produced by the Opposite Parties, by way of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, actually, there was development of the area, where the alternate plot, in question, was allotted, in favour of the complainant. In the absence of production of such documentary evidence, which could be easily available with the Opposite Parties, only one and one inescapable conclusion, which can be arrived at, is that the version set up by the complainant, that there was no development at the site, where the alternate plot was allotted to him, is correct. By not delivering the legal physical possession of the fully developed residential plot, to the complainant, even after the receipt of entire price thereof, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.  
27.       No doubt, the Counsel for the Opposite Parties, placed reliance on Ishwar Rawat Vs. Haryana Urban Development Authority and Ors., III (2008) 351 (NC), to contend that it was for the complainant, to prove, through cogent and convincing evidence, that the development  works, at the site, where relocated plot No.109-AG-557-300, is situated, had not taken place. The facts and circumstances of Ishwar Rawat's case (supra) are clearly distinguishable, from the facts of the instant case. In that case, the complainant was allotted booth No.48-P, Sector 17, Faridabad, measuring 27 sq. yards, in open auction, vide allotment letter dated 19.04.1996. After paying the requisite 25% of the bid amount, possession was given to the complainant, on 14.05.1996. Thereafter, the complainant did not pay the 10 equated installments, towards the price of shop and the same was resumed. The auction was made on, as-is-where-is basis. There was no agreement, between the parties, in the aforesaid case, that the provision of amenities shall be a pre-condition. In the instant case, there was an Agreement, executed between the parties, according to which the amenities were required to be provided to the complainant, before handing over possession of the unit. Not only this, even the External Development Charges, had been deposited, by the complainant, and it was the duty of the Opposite Parties, to ensure that there was external development at the site, before possession of the plot, was handed over to him. Since, the External Development Charges, as stated above, were obtained by the Opposite Parties, it was their duty to get the external development made even before the scheme was actually launched and the plots were carved out. No help, therefore, can be drawn, by the Counsel for the Opposite Parties, from Ishwar Rawat's case (supra), as the facts of the same are quite distinguishable, from the facts of the instant case.
28.       Now, the question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of amount, deposited by him, in the circumstances, referred to above. As stated above, the Opposite Parties failed to deliver legal physical possession of the alternate plot, in question, allotted in favour of the complainant. They, therefore, had no right, to retain the hard earned money of the complainant, in the sum of Rs.38,37,149/-, deposited by him, towards the price of plot, in question, in the manner, referred to above, without rendering him, any service. Since, the alternate plot, in question, had not been developed, even by the time, the complaint was filed, no alternative was left with the complainant, than to ask for the refund of amount, deposited by him. For their own fault, the Opposite Parties could not invoke the forfeiture clause. Had the complainant not complied with the terms and conditions of the Plot Buyer’s Agreement, the matter would have been different. In this case, the complainant complied with all the terms and conditions of the Plot Buyer’s Agreement and did not make any default. In our considered opinion, the complainant is entitled to the refund of amount of Rs.38,37,149/-, deposited by him. By not refunding the amount, deposited by the complainant, the Opposite Parties were deficient, in rendering service.
29.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by him, if so, at what rate. The amount of Rs.38,37,149/-, towards the price of alternate plot, in question, was deposited by the complainant, in the manner, referred to above. The complainant was deprived of his hard earned money, on the basis of misleading information given by the Opposite Parties, that he would be handed over the legal physical possession of the relocated plot No.109-AG-557-300 by the stipulated date, but they failed to do so. The complainant, was, thus, caused financial loss. The hard earned money of the complainant was utilized by the Opposite Parties, for a sufficient longer period. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Parties were charging compound interest (quarterly) @15% P.A., as is evident from Clause 3 of the Plot Buyer's Agreement dated 20.06.2007, Annexure P-1. Under these circumstances, in   our   considered  opinion,   if  interest @12% P.A., on the amount, deposited by the complainant, from the respective dates of deposits, is granted, that will serve the ends of justice.
30.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment and injury caused to him, for a long number of years, by neither delivering the physical possession of plot, to him, nor refunding the amount, asked for by him. The complainant purchased the plot, in question, in the manner, referred to above, with the hope to have a roof over his head, by raising construction thereon, but his hopes were dashed to the ground, when there was no development of the residential plot, nor the question of delivery of possession thereof, arose. Till date, delivery of physical possession of the alternate plot, has not been made, to the complainant, by the Opposite Parties. The complainant shall also not be able to purchase the plot, like the one, in question, at the same rate, at which it was purchased by him, due to escalation in prices. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to him, at the hands of the Opposite Parties, as also escalation in prices of the real estate, to the tune of Rs.1,50,000/-, which could be said to be adequate and reasonable.
31.       No other point, was urged, by the Counsel for the parties.
32.       For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally held liable and directed as under:-
    1. To refund the amount of Rs.38,37,149/-, to the complainant, alongwith interest @ 12% per annum, from the respective dates of deposits,  within 45 days, from the date of receipt of a certified copy of this order.
    2.  To pay compensation, in the sum of Rs.1,50,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices of the real estate, 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.20,000/-, to the complainant.
    4. In case the payment of amounts, mentioned in Clauses (i) and (ii) is not made, within the stipulated period, then they (Opposite Parties) shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A., instead of 12 % P.A., from the respective dates of deposits, till realization, and interest @12% P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.20,000/-.
33.       Certified Copies of this order be sent to the parties, free of charge.
34.       The file be consigned to Record Room, after completion.

Pronounced.

6.5.2015

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[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

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[DEV RAJ]

MEMBER

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(PADMA PANDEY)

        MEMBER

Rg.