Chandigarh

StateCommission

CC/536/2016

Lovkesh Khanna & anr. - Complainant(s)

Versus

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

Jasminder Singh Thind & Vishal Goel, Adv.

16 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Lovkesh Khanna s/o M.R.Khanna, r/o H.No.270, Sector 33-A, Chandigarh.
2. Poonam Khanna w/o Lovkesh Khanna, r/o H.No.270, Sector 33-A, Chandigarh.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Pvt. Ltd., MGF House, 17-B, Asaf Ali Road, New Delhi through its Managing Director.
2. M/s Emaar MGF Land Pvt. Ltd., SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh, through its Authorised Officer.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

Argued by:      

Sh.  Vishal Goel, Advocate for the complainants.

Sh.  Sanjeev Sharma, Advocate for the Opposite Parties.

PER PADMA PANDEY, MEMBER

               The facts, in brief, are that earlier Shashi Manchanda and two other persons purchased plot No.514 in Augusta Greens, Sector 109, Mohali from the Opposite Parties for total consideration of Rs.40,50,354/- on 28.12.2007 and, thereafter, the said plot was purchased by the complainants from the original buyers on 15.06.2011, which was endorsed in favour of the complainants. Copies of the Buyer’s Agreement dated 28.12.2007 and endorsement in favour of the complainants are Annexures C-1 & C-2. According to terms and conditions of the Agreement, possession of the plot was to be delivered within a period of three years from the date of the Agreement. It was further stated that when the complainants purchased the plot from the original buyers, by that time, the period of three years has already been expired but they purchased the plot with the hope that possession will be delivered very soon but the Opposite Parties failed to deliver the same till the year 2014. It was also observed by the complainants that the plot purchased by them was not having the front road and, as such, they approached the Opposite Parties and the Opposite Parties exchanged the abovesaid plot with plot No.MLU-177 in Sector 109, Mohali and accordingly, Amended Agreement was also executed between the parties on 26.09.2014 (Annexure C-3). Thereafter, the Opposite Parties failed to deliver possession of the aforesaid plot to the complainants and when they visited the site, it was found that high tension electrical wires line was passing in front of their plot, as such, they again approached the Opposite Parties. Then, the Opposite Parties exchanged plot NO.MLU-177 with plot No. AP-712, Sector 109, Mohali and a second Amended Agreement was executed between the parties on 15.04.2016 (Annexure C-4). As per the Amended Agreement, new plot No.AP-712 was earmarked with a measurement of 400 sq. yds. for which the consideration was fixed at Rs.49,22,800/- including the base price as well as EDC. It was further stated that the complainants paid the total amount of Rs.40,50,355/- to the Opposite Parties vide account statement (Annexure C-5). It was further stated that the Opposite Parties issued letter of intimation of possession to the complainants dated 23.05.2016 (Annexure C-6), in which, it has been mentioned that the process of handing over of plot in Sector 109, Mohali Hills shall commence within 60 days of this letter, as the plot is ready to be handed over for possession and in that letter, it has been observed that there is no averment regarding arrangement of electricity and water connection, nor anything is mentioned qua the facility of sewerage, roads and other mandatory requirements, which should be provided to the allottee, without which, it is impossible to construct the plot or to take possession of the same. Thereafter, when the complainants visited the plot, they were shocked to see that the high tension wires total 12 in numbers were erected in middle of the road from which the complainants have to approach their plot and in that regard, they immediately wrote an email dated 19.06.2016 (Annexure C-7). It was further stated that the Opposite Parties issued a letter of intimation of possession but they failed to provide the complete possession of the plot. It was further stated that as per Clause 8 of the Agreement, the Company should be liable to pay penalty of Rs.50/- per sq. yards per month for such period of delay beyond three years from the date of execution of the Agreement and if calculated, comes to Rs.10,20,000/- but the Opposite Parties in their account statement dated 28.07.2016 compensated an amount of Rs.7,31,331/- to the complainants (Annexure C-8). It was further stated that for the delay in possession, the complainants have suffered a lot because on the one hand the complainants paid the interest on the loan taken for the purchase of plot and on the other hand, they have to bear acceleration of cost of construction. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.           The Opposite Parties, in their written version, have taken objection regarding arbitration clause in the Agreement, and 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 complainants are subsequent purchasers and purchased the plot from open market, as such, they are not  consumers. It was further stated that as per Clause 8 of the Agreement, the Company shall liable to pay penalty to the complainants at the time of final possession, which has already been credited in the name of the complainants, as per intimation of possession letter. It was further stated that the complainants stepped into the shoes of the earlier allottee(s) and as the earlier allottee(s) had defaulted in payment of installments, the complainants are liable to pay the penal interest on the delayed payments. It was further stated that the prayer for possession of the plot is not maintainable as the same amounts to specific performance of the contract, which is beyond the powers of the Consumer Courts and such power can only be exercised by the Civil Courts.  The Opposite Parties offered possession of the plot only on completion of internal services, as specified in the Agreement, which would enable the complainants to initiate construction on the plot. It was further stated that possession of the plot has already been offered on 29.01.2016 for the earlier allotted plot 109-MLU-177-300 and later, the complainants sought relocation on the basis of medical grounds, which was accepted by them. It was further stated that on the asking of the complainants, the plot was relocated and, therefore, the delay in offer of possession cannot be considered beyond 29.01.2016 as possession was duly offered after completion of the amenities. It was further stated that in case of sale of immovable property, time is never regarded as the essence of the contract. Thus, the complainants are not entitled to claim possession within any time bound manner, as the same would amount to specific performance of the contract. It was further stated that this Commission has no territorial jurisdiction to try and entertain the complaint, as the unit is situated at Mohali.  It was pleaded that the parties are bound by the terms and conditions of the Agreement and it is clearly stipulated in the Agreement that in case of failure of the allottee to perform all obligations, the allottee has authorized the Company to forfeit the earnest money as stipulated in the Agreement alongwith any interest paid, due or payable, any amount of non refundable nature. It was further stated that the complainants have not made HDFC Bank as a party, as they obtained loan from the said Bank and no refund could be made in favour of the complainants, as the same is in contravention to the agreed terms and conditions of the Agreement executed between the parties. It was admitted that the original allottee purchased the unit in September, 2006 for the total consideration of Rs.40,50,354/- and Agreement was executed between the initial allottee and the Opposite Parties on 28.12.2007. It was further pleaded that the complainants have purchased the plot, when time for offer of possession has already elapsed on 28.12.2010 and the original allottees as well as complainants accepted the delay, as they had purchased the plot subsequently, which was endorsed in favour of the complainants on 08.07.2011 (Annexure R-1). It was further stated that as per Clause 8 of the Agreement, the Company was supposed to try and handover possession of the unit within three years from the date of execution of the Agreement and in case of delay, they would be liable to pay penalty @Rs.50/- per sq. yard per month.  It was further stated that on the request of the complainants dated 01.06.2012, they were relocated unit No.109-MLU-177-300 and accordingly, Amended Agreement was executed between the parties on 26.09.2014. It was further stated that intimation of possession was sent to the complainants and again on the request of the complainants, they were relocated unit No.109-AP-712-400 and accordingly Agreement was again amended on 15.04.2016 for total consideration of Rs.49,22,800/-. It was further stated that the letter of the complainants for seeking change of location was on the basis of high tension wire line going near to the plot which led to medical problem of their mother (Annexure R-3). Copy of the Amended Agreement is Annexure R-4. It was further stated that the complainants have paid the total amount of Rs.47,81,686/- against the unit vide statement of account (Annexure R-5). It was further stated that the Opposite Parties duly offered possession of the plot on 29.01.2016, so the delayed compensation is not payable after 28.01.2016  because on the basis of the request of the complainants, the relocation was made.   It was further stated that the earlier plot allotted to the complainants was of 300 sq. yards and now selected plot was measuring 400 sq. yards and the complainants agreed to pay the price towards the increased area and increased EDC. It was further stated that earlier plot was PLC plot, whereas, the now selected plot was non PLC and Rs.4,31,250/- was reduced. It was further stated that earlier cost of the plot was Rs.41,23,950/- and now allotted price was Rs.49,22,800/- and they were asked to accept relocated plot. Copies of the mails exchanged are Annexures R-10 colly. It was further stated that the compensation has been credited in the account of the complainants i.e. Rs.7,31,331/-, as per Clause 8 of the Agreement. It was further stated that temporary electricity and water charges have been provided for construction of plot and the Opposite Parties would provide them with all assistance in construction of plot. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

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

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

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

6.           The first question that falls for consideration is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Parties, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

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

            In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Parties, stands rejected.

7.            The objection taken by the Opposite Parties, to the effect that the complainants being subsequent buyers, purchased the plot from open market, did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It is, no doubt, true that the complainants purchased the plot from the original allottees, which was endorsed in their favour on 15.06.2011. As such, the complainants stepped into the shoes of the earlier allottees and the same terms and conditions were applicable upon the complainants, as applicable upon the earlier allottees. Even the complainants are not the property dealers, who deal in the sale and purchase of property, on regular basis. Thus, the objection taken by the Opposite Parties has no value, at all and the same stands rejected.  

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

              According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that Plot Buyer’s Agreement was executed between the initial allottees i.e. Shashi Manchanda & two others with the Opposite Parties at Chandigarh on 28.12.2007. Thereafter, the complainants purchased the plot from the initial allottees and stepped into the shoes of the earlier allottees vide endorsement dated 15.06.2011. Not only this, even the letters (Annexure C-2 & C-3), Amended Agreement executed between the complainants and the Opposite Parties at Chandigarh on 26.09.2014 (at page No.26 of the file), letter (Annexure C-4), statement of account (Annexure C-5) and intimation of possession letter dated 23.05.2016 (Annexure C-6),  were also sent by the Opposite Parties form their Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

9.           With regard to the objection taken by the Opposite Parties regarding not impleading HDFC as a party is concerned, it is, no doubt, true that the complainants availed loan from HDFC Bank and it is admitted by the Opposite Parties that Tripartite Agreement was executed between the parties. We are of the view that since the installments against loan are to be paid by the complainants, there is no role of the Bank with regard to the dispute, in question, more so when the complainants are seeking possession of the unit. 

10.          Another objection raised by Counsel for the Opposite Parties was that since the prayer for possession of the plot is not maintainable, as the same amounts to specific performance of the contract, which is beyond the power of the Consumer Courts and such power can only be exercised by the Civil Court. It may be stated here, that this is a simple case of non-delivery of possession of the unit, in question, within the stipulated period, as per the Agreement, despite making payment of substantial amount towards the same i.e. denial of service by the Opposite Parties. It has also been clearly held by the Hon’ble   Supreme Court of India, in Lucknow   Development   Authority   vs   M.  K. Gupta, 1994 SCC (1) 243, that   if   a   builder   fails   to   deliver   possession of   the   property   by   the   stipulated   period,   the    delay  so  caused   is   denial   of   service.   Apart from this, it may be stated here that the complainants hired the services of the Opposite Parties, for purchasing the plot, in question, in the manner, referred to above. According to Clause 8 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, it was to deliver physical possession of the plot, within a maximum period of 3 years, from the date of execution of the same (Agreement). Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

                  From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of consumer, as stated above. So, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

11.          Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the possession was “endeavored” to be handed over within 3 years from the date of execution of the Agreement, as such, there was no definitive agreement stating that possession would definitely be delivered within 3 years , therefore, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 8 of the Agreement that subject to force majeure conditions and reasons beyond the control of the Company, the possession was to be delivered to the complainants within the maximum period of 3 years from the date of execution of Agreement.  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 complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 3 years 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 was mentioned in the Agreement, for delivery of possession of the unit, 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 Counsel for the Opposite Parties in this regard also stands rejected.

12.          The next question, that falls for consideration, is, as to on which date, the Opposite Parties offered possession of the unit to the complainants. Admittedly, plot bearing No.514 in Augusta Greens, Sector 109, Mohali was initially booked by Shashi Manchanda and two other persons on 28.12.2007. Plot Buyer’s Agreement was  executed between the initial allottees and the Opposite Parties on 28.12.2007. As per Clause 8 of the Agreement, possession of the unit was to be delivered within a maximum period of 3 years from the date of execution of the Agreement i.e. latest by 27.12.2010. Thereafter, the complainants purchased the said plot, which was endorsed in their favour on 15.06.2011, as such, the complainants stepped into the shoes of earlier allottee(s). It is pertinent to note that the period of three years, as per the Agreement, had already expired when the complainants purchased the said plot from the initial allottees. It is the admitted fact that the complainants paid the total amount of Rs.40,50,355/- (Annexure C-5) in respect of the unit, in question. Even after the lapse of three years from the said endorsement i.e. till the year 2014, the Opposite Parties failed to offer/deliver possession of the unit to the complainants and they observed that there was no road in front of his plot and, as such, the Opposite Parties relocated new plot No.MLU-177 in the same sector i.e. Sector 109, for which, Amended Agreement was got signed between the parties on 26.09.2014 (Annexure C-3). It is very clear from the documents annexed by both the parties that till the year 2016, no possession of the relocated plot was offered to the complainants.  According to the Opposite Parties, letter of intimation of possession of plot No.109-MLU-177-300 in Sector 109, Mohali Hills was sent to the complainants vide letter dated 29.01.2016 (Annexure R-7) but on the request of the complainants, the said plot was exchanged with new plot No.AP-712. On the other hand, the complainants stated that when they visited the site, they found that high tension wire were above their plot, therefore, the complainants approached the office of the Opposite Parties in this regard and, as such, new plot No.AP-712 in the same sector i.e. Sector 109, Mohali for the total consideration of Rs.49,42,800/- was allotted to the complainants and, therefore, Amended Agreement was executed between the parties on 15.04.2016 (Annexure C-4). It is the admitted fact that due to high tension wire line and health problem of mother of the complainants, they wanted to exchange the said plot. It is pertinent to note that when the Opposite Parties received huge amount from the innocent customers for the unit, in question, it is the duty of the Opposite Parties to provide best accommodation. So, the said intimation of possession regarding unit No. MLU-177, as alleged by the Opposite Parties, has no value, at all.  It is relevant to mention here that the Opposite Parties finally sent letter of intimation of possession of plot No.109-AP-712-400 in Sector 109, Mohali Hills to the complainant(s) vide letter dated 23.05.2016 (Annexure R-9). Moreover, the complainants again visited the site and found that there was the problem of high tension wires again and, as such, they wrote an email dated 19.06.2016 (Annexure C-7) to the Opposite Parties to set right the said problems including giving permanent electricity and water connection. So, it is clearly proved that the possession of the new allotted unit was given to the complainants vide letter dated 23.05.2016 (Annexure R-9) i.e. after the huge delay on the part of the Opposite Parties.

13.          The next question, that falls for consideration, is, as to what amount is required to be deposited by the complainants for taking possession of the plot/unit.  It is an admitted fact that the complainants paid the total amount of Rs.40,50,355/- in respect of the plot/unit, in question and the Opposite Parties also credited (compensation) to the tune of Rs.7,31,331/-, as is evident from statement of account (at page No.42 of the complainants documents). A bare perusal of the statement of account clearly shows that the total cost of the plot was Rs.50,22,800/-, out of which, the complainants paid the total amount of Rs.47,81,686/- (Rs.40,50,355/- in respect of the plot + Rs.7,31,331/- compensation credited by the Opposite Parties by way of credit memo). The following amount is to be paid by the complainants, in respect of the unit, in question :-

So, it is clearly proved that the complainants are required to pay an amount of Rs.8,29,098/- in respect of the unit, in question.

14.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for non-delivery of physical possession of the plot/unit in question within the maximum stipulated period of three years to the complainants. As stated above, in the instant case, the Opposite Parties have not delivered possession of the unit, complete in all respects to the complainants, within the stipulated time frame, as mentioned in the Agreement. The Opposite Parties offered possession of the unit to the complainants vide letter dated 23.05.2016 (Annexure C-6) i.e. after a huge delay.  No doubt in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainants for delay, was incorporated but it does not mean that the intention was that even in the event of inordinate delay in delivering the possession, the complainants would be entitled to meagre compensation/penalty of Rs.50/- per sq. yds. per month, which is much less than the bank rate for loan or fixed deposit. Therefore, in our considered view, Clause 8 was meant for computing penalty/compensation, in case of a reasonable delay in delivery of possession.  If the argument of the Opposite Parties is to be accepted, it would lead to an absurd situation and would give an unfair advantage to the unscrupulous builder, who might utilize the consideration amount meant to finance the project, by the buyer for its other business venture, at nominal interest of 3 to 4 per cent, as against much higher bank lending rates.  This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act. Recently in Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon’ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)         xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.

(3)   No separate compensation would be payable to the complainants either towards the rent if any paid by them or for the mental agony and harassment which they have suffered on account of the failure of the opposite party to perform its contractual obligation.”

Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the case, referred to above, grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay from the date of endorsement i.e. 15.06.2011 till the date of intimation of possession dated 23.05.2016.

15.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment and injury caused to them, by not delivering the physical possession of plot, to them, within the stipulated period, as mentioned in the Agreement. As per the Agreement, the Opposite Parties were bound to deliver possession of the plot to the complainants within a maximum period of three years from the date of execution of the Agreement but in the present case, the complainants purchased the plot from the original allottees when the stipulated period for handing over of possession has already expired. Moreover, the Opposite Parties offered possession of the unit to the complainants only vide letter dated 23.05.2016 (Annexure C-6) i.e. after a huge delay of five years from the date of endorsement. Even the Opposite Parties used the hard-earned money of the complainants. The complainants underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation,  to the tune of Rs.1 lac, on account of mental agony and physical harassment, caused to the complainants, due to the acts of omission and commission of the Opposite Parties, if granted, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.1 lac, as indicated above.

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

17.         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.        Complainants are directed to make the payment of Rs.8,29,098/-, as mentioned in the aforesaid paragraph to the Opposite Parties, in order to take possession of the said plot, in question, within a period of one month from the date of receipt of a certified copy of the order.
2.         Opposite Parties shall jointly and severally hand over physical possession of  the plot, complete in all respects, to the complainants, within a period of four months, from the date of receipt of a certified copy of this order, on payment of the amount, legally due against them.
3.         Opposite Parties shall jointly and severally execute the sale/conveyance deed and get it registered in the name of the complainants after handing over the actual physical possession of plot, in question,  within a period of one month thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainants.
4. The Opposite Parties are directed to pay compensation, by way of interest @12% p.a., on the deposited amount (Rs.40,50,355/-), to the complainants, from the date of endorsement i.e.15.06.2011 till 23.05.2016 i.e. the date of intimation of possession of the plot, in question, after adjusting the amount of Rs.7,31,331/- already paid as compensation by the Opposite Parties to the complainants, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., from the date of default, till realization.
5.        The Opposite Parties are directed to pay compensation, in the sum of Rs.1,00,000/- on account of mental agony and physical harassment, caused to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
6. The Opposite Parties are directed to pay cost of litigation, to the tune of Rs.50,000/- to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

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

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

Pronounced.

February  16, 2017.                                       Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

Sd/-

 [DEV RAJ]

MEMBER

Sd/-

 (PADMA PANDEY)

        MEMBER

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