PER SUBHASH CHANDRA 1. This appeal under Section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) is directed against the order dated 20.09.2018 of the State Consumer Disputes Redressal Commission, U.T., Chandigarh (in short, the ‘State Commission’) in CC no.868 of 2017 partly allowing the complaint and directing refund of the amount of Rs.39,92,307/- deposited with the appellant with compensation with interest @ 12% per annum from the respective dates of deposit with Rs.2,00,000/- for mental agony and physical harassment and escalation in prices within two months of the order failing which with penal interest @ 14% and litigation cost of Rs.50,000/- with interest @ 12% from the date of filing of the complaint till realisation. 2. This order is impugned before us with the prayer to set aside the impugned order and to pass such other order(s) deemed just and necessary. The delay of 70 days in filing of this appeal is condoned in the interest of justice in the light of the reasons mentioned in IA no. 490 of 2019. 3. We have heard the learned counsel for both the parties and given our thoughtful consideration to the material on record. 4. The relevant facts of this case in brief are that the appellant promoted a Mega Township project named ‘Mohali Hills’ as an integrated town ship with Green Belt of 50 acres with exemptions under the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, ‘PAPRA’) from the Government of Punjab vide notification dated 22.07.2006. The respondent was allotted plot no. 108-PP–404–300, Pinewood Park, Sector 108, Mohali, Punjab, for a sale consideration of Rs.39,42,249/- excluding EDC and IDC vide allotment letter dated 05.05.2007. A Buyers Agreement was executed on 04.07.2007 which prescribed a time linked payment plan. At the request of the respondent, the appellant altered the intimation date to 29.10.2007. On 30.11.2010 appellant issued possession letter conveying the increase in the area of the plot from 300 to 479 sq yds and raised demand for excess amount and other dues under the Buyer’s Agreement. A reminder was issued on 21.11.2011 for payment of Rs.23,53,985/- followed by letter dated 02.05.2014 for Rs.36,27,360.21 and subsequently on 21.05.2014. On 02.07.2014 the respondent sought relocation of the plot which was turned down by the appellant on 19.07.2014. A reminder notice for payment of Rs.35,75,976.57 was issued to the appellant on 29.07.2014 and on 22.08.2014. The respondent replied on 23.02.2015 seeking relocation to a smaller plot. The respondent filed a consumer complaint in 2017 seeking refund of the amount deposited. By way of impugned order the refund was ordered along with 12% interest with other costs and compensation. 5. The appellants case is that the plot is ready to be handed over since 2017 and that the State Commission’s order is erroneous in that a common impugned order in the matter of Nand Lal vs Emaar MGF Land Ltd., and Anr., (CC no.841 of 2017) which disposes of the present matter also, had incorrectly held that the parties and their counsel had agreed that the facts of these cases were common and that clubbing of distinct complaints for a common order was incorrect. However, this order has not been appealed against. 6. The appellant contends that (i) the respondent was not a ‘consumer’ under section 2 (1) (d) of the Act as he was a property broker, whose correspondence address was that of his office where he dealt in properties and that the State Commission erroneously relied upon the judgment of this Commission in Kavita Ahuja vs Shipra Estate Ltd., 2016 (1) CPJ 31; (ii) the State Commission did not consider that the complaint was barred by limitation since it was filed nearly six years after the cause of action; (iii) it failed to consider that the only grievances of the respondent related to the issue of plot size and relocation to a better location; (iv) had over looked the fact that the respondents were defaulters in making payments and therefore cannot seek a remedy under Act; (v) the respondent had not been able to establish any loss on account of the purported delay in delivery of the plot and having sought refund in 2017, the respondent would be bound by the terms of the Buyer’s Agreement with regard to forfeiture without interest and that the same could not be rewritten; (vi) the State Commission erred in interpreting Clause 8 of the Agreement that possession of the plot would be offered within 36 months from the date of allotment since this provision was subject to force majeure which had not been considered; (vii) the State Commission in allowing interest as compensation without forfeiture of earnest money and refundable amount went beyond the contract; (viii) the grant of refund with interest @ 12% per annum contravened the principles of interest and compensation and erred in relying on the Hon’ble Supreme Court’s judgment in GDA vs Balbir Singh, (2004) 5 SCC 65; (ix) the application for arbitration was incorrectly rejected when made by the appellants. 7. The appellant relied upon this Commission’s order in Balbir Singh Dhalta Vs. DLF Universal Ltd. & Anr. in CC no. 784 of 2017 dated 06.01.2023 whereby refund had been directed with compensation @ 6% per annum interest on the deposited amount along with litigation cost of Rs.25,000/- 8. Per contra, the respondent made an offer to settle the matter by way of affidavit. It was submitted that the respondent was willing to accept the possession of the original plot of 480 sq yds and to execute the documents. Willingness to forego compensation for the delay and other awarded amounts by the State Commission were also offered. Reliance was also placed in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, Civil Appeal No. 6044 of 2019 decided on 07.04.2022. 9. The preliminary objections of the appellant pertaining to maintainability of the complaint on grounds of whether the respondent was a ‘consumer’ and limitation are addressed at the outset. The State Commission has held that the respondent is a ‘consumer’ under section 2 (1) (d) of the Act as the appellant has failed to discharge the onus of proof to establish that the respondent was a broker in real estate dealing in the sale and purchase of property. Merely because his address was that of a broker could not establish this allegation. The State Commission had rightly relied upon Kavita Ahuja (supra). As regards the ground of limitation taken, it is evident that the appellant issued an offer of possession dated 30.11.2010. As per the Buyer’s Agreement dated 04.07.2007, the appellant had undertaken to offer possession within 36 months, subject to force majeure circumstances. The appellant has, however, not brought on record any evidence of such circumstances that can be availed of by it to claim delay in the execution of the project in question. It is also evident that the appellant did not cancel the allotment or terminate the Agreement on the ground of default in the making of payments. As held by the Hon’ble Supreme Court in Meerut Development Authority vs Mukesh Kumar Gupta SLP (Civil) CC 8481 of 2012 there is therefore a continuing cause of action and the respondent was entitled to prefer the complaint before the State Commission. It is therefore not open for the appellant to now claim that the respondent was not entitled to seek the remedy of refund. In view of the fact that the Consumer Protection Act is a beneficial legislation, the remedies under it are in addition to and not in derogation to other statutes. The State Commission has rightly relied upon this Commission’s judgment in Aftab Singh Vs Emaar MGF land Ltd. & Anr. in CC No. 701 of 2015 dated 13.07.2017 to hold that the clause of arbitration does not estop the consumer from seeking redressal under the Consumer Protection Act. Hence, the contention of the appellant that the State Commission erred in not considering the application for arbitration cannot be sustained. 10. On merits, it is apparent that the appellant has delayed offer of possession as per the commitment under the Agreement. The contention of the appellant that no definite assurance was given and that the Clause was subject to force majeure has been considered by the State Commission in the impugned order and it has been held that no such circumstances were raised by the appellants to justify the extension of the committed time line. The reliance on this contention by the appellant has therefore been rightly not considered as a valid justification by the State Commission. 11. The State Commission has held as under: 17. ………. It is the admitted fact that the complainant deposited the total amount of Rs 43,68,867/- (Rs.43,68,867.43 as prayed by the complainant) in respect of the unit in question as is evident from the Statement of Account (Annexure R/4). As per the Agreement, possession was to be delivered by the Opposite Parties within a period of 36 months from the date of allotment which expired on 28.04.2014 but after receipt of the huge amount from the complainant, the Opposite Parties failed to deliver possession of the unit to the complainant within the stipulated time frame as mentioned in the Agreement or even the time when the complaint was filed. So, the complainant is thus entitled to get refund of amount deposited by him. In view of the 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. 18. 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.43,68,867/- 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. The opposite parties were charging rate of interest @ 15% p.a. compounded as per Clause 20.1 of the Agreement for the period of delay in making payment of instalments. 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. In the facts and circumstances of the case, the complainant is held entitled to get refund of the amount deposited by him to the tune of Rs 43,68,867/- along with simple interest at 12% p.a. from the respective dates of deposits till realisation. 19. As far as the plea taken by Counsel for the Opposite Parties at the time of arguments regarding forfeiture clause is concerned, it may be stated here that the same stands rejected because it is not their (Opposite Parties’) case that they were ready with possession of the unit to be delivered to the complainant, complete in all respects as per terms and conditions contained in the Agreement by the stipulated date, but it was he (complainant) who wanted to rescind the contract on account of some unavoidable circumstances/ financial constraints or for any personal reason and is seeking refund of the amount deposited. Had this been the case of Opposite Parties, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such he is entitled to the amount deposited after deduction of some amount as per the terms and conditions of the agreement. In this view of the matter, the plea taken by Opposite Parties in this regard have no legs to stand and are accordingly rejected. 20. Since it has already been held that the complainant is entitled to refund of the amount deposited along with interest and compensation, as such the plea taken by the Opposite Parties to the effect that they are ready to pay penalty amount for the period of delay in delivery of possession cannot be considered at this stage. If the Opposite Parties are allowed to invoke this Clause of the Agreement in the instant case regarding payment of penalty that would amount to enriching them at the cost of the complainant. The defence taken is accordingly rejected. The findings of the State Commission are well reasoned and based on the evidence on record and the arguments urged before it. 12. The Hon’ble Supreme Court has held in its judgment in Sushma Ashok Shiroor (supra) that compensation awarded should be compensatory and restitutionary. The Apex Court has also held in DLF Homes Panchkula Pvt. Ltd., vs D S Dhanda (2020) 16 SCC 318, decided on 10.05.2019 that the award of compensation under multiple heads for a singular act of deficiency is not justified. The appellant also relies on this Commission’s judgment in Balbir Singh Dhalta (supra) which is based on the acceptance of the offer of possession and compensation for the delay in the offer. In view of the appellant’s reliance on the ration of this judgment and the affidavit of the respondent offering to accept possession of a plot of 480 sq yds, the appeal is disposed of with the following order: (i) Opposite Parties are directed to offer possession of the plot admeasuring 480 sq yds to the respondent within 8 weeks and to execute the conveyance deed of the same subject to payment of final dues by the respondent within 4 weeks thereafter after adjusting delay compensation @ 6% p.a. on the deposited amount from the dates of deposit till the offer of possession. Any delay beyond this period will attract interest @ 9% p.a. Appellants shall also pay the respondent litigation cost of Rs 25,000/-. (ii) In case the parties do not reach concord on the above, the Opposite Parties are jointly and severally directed to refund the amount of Rs 43,68,677.43 deposited by the respondent along with simple interest @ 9% p.a. from the dates of respective deposits within 8 weeks of this order, failing which with 12% simple interest p.a. till realization and also pay the respondent, jointly and severally, litigation cost of Rs 50,000/- along with the above amount; (iii) directions regarding the award of separate compensation for mental agony and harassment and interest on litigation cost are set aside. Pending IAs, if any, stand disposed of with this order. | 
