Chandigarh

StateCommission

CC/446/2017

Manik Sharma - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Sanjeev Sharma,Adv.

19 Feb 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	446 of 2017
Date of Institution	:	25.05.2017
Date of Decision	:	19.02.2018

 

1. Manik Sharma son of Sh.S.C. Sharma, resident of House No.A-601, Gillco Towers, Gillco Valley, Sector 127, Kharar, Mohali-140301, Punjab.
2. S.C. Sharma son of Late Sh.B.L. Sharma, resident of House No.A-601, Gillco Towers, Gillco Valley, Sector 127, Kharar, Mohali-140301, Punjab.

…… Complainants

 

V e r s u s

 

1. Unitech Limited, through its Chairman, having Registered Office at Basement, 6, Community Centre, Saket, New Delhi-110017.
2. Ramesh Chandra, Chairman of Unitech Limited, having its Registered Office at Basement, 6, Community Centre, Saket, New Delhi-110017
3. Unitech Limited through its Director, having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
4. Sanjay Chandra, Director of Unitech Limited, having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
5. Alice Developers Private Limited, through its Director, having Registered Office at Basement 6, Community Centre, Saket, New Delhi-110017.
6. Sanjeev Hingorani, Director of Alice Developers Private Limited, through its Director, having Registered Office at Basement 6, Community Centre, Saket, New Delhi-110017.

 …..Opposite parties

 

Complaint under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:-      Sh.Sanjeev Sharma, Advocate for the        complainants.

Mrs.Vertika H.Singh, Advocate for opposite parties no.1 and 3.

Opposite parties no.2, 4, 5 and 6 exparte.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainants are son and father respectively.  It is their case that with a view to settle near to Chandigarh, they purchased a flat from the opposite parties, in a project launched by them, under the name and style ‘Unihomes’, Uniworld City, Sector 107, Mohali, Punjab. The said project was launched by the opposite parties, with much fanfare. It was advertised that the opposite parties will provide outstanding level of comfort, convenience and security to the allottees, in the said project. It was further stated that opposite parties no.1 to 4 had given development rights to one of its Associate Company i.e. opposite party no.5, of which, opposite party no.6 is the Director. An assurance was given to handover possession of flat(s), in the said project, in a time bound manner.

                To purchase the said flat, application form was signed on 25.09.2009, in Chandigarh Office of the opposite parties. The complainants paid an amount of Rs.2,49,258/- towards earnest money. The said amount was paid through cheque. Vide Annexure C-1 dated 25.09.2009, the complainants were allotted flat no.A-0025 (3 Bedroom), Ground Floor, Block A, measuring 1077 square feet. Price of the flat was fixed at Rs.27,54,214/-, including external development charges, preferential location charges etc. Flat Buyer’s Agreement dated 22.10.2009, executed in respect of the said unit, has been placed on record as Annexure C-2. The complainants opted for construction linked payment plan. As per Clause 4.a (i) of the Agreement, after construction, possession of the unit was agreed to be given within 36 months, from the date of signing of the above said Agreement i.e. on or before 21.10.2012. Relevant condition no. 4.a.(i) of the Agreement reads thus:-

4.a. Delivery of Possession:

(i) That the possession of the Floor is proposed to be offered to the Purchaser(s) within 36 months of signing of these presents, subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable by the Purchaser(s) under this Agreement have been paid within the stipulated period. It is, however, understood between the Parties that various Floors shall be ready and shall be completed in phases and handed over to the Purchaser(s) accordingly.”

Before delivery of possession, as per Article 4.b., it was incumbent for the opposite parties, to give notice to the complainants. In case of delay in handing over possession of the unit, beyond the period of 36 months, subject to force majeure circumstances, it was further provided in Article 4.c. in the Agreement that penalty @Rs.5/- per square feet, per month of the saleable area, for the period of delay in delivery of possession of the unit shall be paid by the opposite parties, to the complainants.

2.         It was stated that, after signing of the said agreement, on demand raised by the opposite parties, further amount of Rs.2,77,164/- was paid by the complainants, vide receipt dated 15.12.2009 (at page 58 of the file). Thereafter, no demand was raised by the opposite parties, in respect of the unit, in question. Rather it was told to the complainants that, as and when, construction will be started, the opposite parties will raise demand of further amount due. The complainants kept on visiting the office of the opposite parties seeking time and date to make further payment in respect of the unit, in question and also with a request to complete construction and hand over possession thereof, however, they failed to get any positive response. The complainants visited the site, in question, on 16.01.2013 and it was noticed that construction of the tower, in which the unit, in question, was allotted had not yet been started. It was further noticed that so far as the entire complex is concerned, there was no development at all. Assurance was given by the opposite parties that construction and development work will start soon. Thereafter, the complainants continued to wait, however, nothing was done, till the time, this complaint was filed. What to talk of offering possession of the unit, even construction of the tower, in which it was allotted, was not started. It was specifically stated by the complainants that it appears that the opposite parties have abandoned the project, in question.
3.         By stating as above, the instant complaint, has been filed by the complainants, with a prayer to issue directions to the opposite parties to refund the amount of Rs.5,26,422/-, with interest; compensation to the tune of Rs.2 lacs for mental agony and physical harassment; and litigation expenses to the tune of Rs.35,000/-.
4.         Notice in this complaint was issued on 29.05.2017. However, despite deemed service, none put in appearance on behalf of opposite parties no.5 and 6, as a result whereof, they were proceeded against exparte, vide order dated 07.07.2017. In the same manner, when opposite parties no.2 and 4 also did not put in appearance, they were also ordered to be proceeded against exparte, vide order dated 28.08.2017.
5.          Opposite parties no.1 and 3 filed their joint written statement, on 28.08.2017, wherein, numerous objections were taken, to defeat the claim of the complainants. An attempt has been made by opposite parties no.1 and 3, to wash of their hands, by stating that Buyer’s Agreement was signed between opposite parties no.5, 6 and the complainants. As per Development Agreement dated 01.12.2008 opposite parties no.5 and 6 were to construct the units and hand over possession thereof, to the purchasers. As opposite parties no.5 and 6 have failed to do so, as such, no liability can be imposed upon opposite parties no.1 and 3, which were only to market and sell the project, in question, and also to receive payments from the allottees, on behalf of opposite parties no.5 and 6. Territorial jurisdiction of this Commission was challenged by stating that Buyer’s Agreement was signed at New Delhi; payments were received at Chandigarh Office of opposite parties no.1 and 3, through cheques, which were ultimately forwarded to Gurgaon Office of opposite parties no.5 and 6 and deposited in their designated account; receipts were also issued by the said office; all demands to make payment were raised by opposite parties no.5 and 6; and the unit, in question, is also situated at Mohali. Pecuniary jurisdiction of this Commission was also challenged. It was averred that the complaint filed is beyond limitation. It was stated that the unit, in question, was purchased for future gain, as such, the complainants being investors, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.
6.         On merits, it was admitted that the complainants had purchased the residential unit, in question, in the manner, referred to above. Payments made by the complainants towards price of the unit, are also not disputed. Fact qua price of the unit, as mentioned in the complaint was also not disputed. It was stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was further stated that, in fact, the complainants should have filed a civil suit for recovery of the amount deposited.
7.         It was not disputed that as per condition no. 4.a.(i) of the Agreement, possession of the fully developed unit, was to be delivered to the complainants within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions. The said period was extendable and till such time, the sale deed is executed, the builder was to remain owner of the property, in question. It was stated that it was opposite parties no.5 and 6, which was to construct the units and deliver possession of the same, as such, no liability can be fastened upon opposite parties no.1 and 3, as they were only the confirming parties. It was averred that opposite parties no.1 and 3 has no liability to make refund of the amount deposited. It was stated that vide Development Buyer Agreement dated 01.12.2008, opposite parties no.5 and 6 were assigned development rights, with regard to more than 33.2438 acres of land, in which unit allotted to the complainants is situated. Opposite parties no.5 and 6 were also authorized to use Unitech Trade Mark and Corporate Logo, for various purposes, such as promotional marketing, advertisements etc. and opposite parties no.1 and 3 have a limited role in the transaction, in question. It was pleaded that any letter issued by opposite parties no.1 and 3, to the complainants, was only on behalf of opposite parties no.5 and 6. In terms of Clause 2 (e) of the Agreement, in case, the buyer cancels the allotment, and/or seeks refund of the amount deposited, the developer is at liberty to forfeit the earnest amount, out of the deposited amount, as the case may be. Delay in delivery of possession of the unit was candidly admitted. It was stated that, delay, if any, took place, is solely attributable to the Punjab State Power Corporation Limited (PSPCL) and (GMADA), as they took a long time for granting sanction to provide electricity in the project. It was  further stated that, the developer was entitled for extension of time, in handing over possession of the unit, in case of force majeure circumstances, having been faced by it, as per Clause 8 (b) of the Agreement. It was averred that, now the electricity is provided at the site; all the basic amenities including the construction work of the unit are complete and the opposite parties have already applied for partial completion certificate vide letter dated 03.02.2016. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
8.         The contesting parties, led evidence in support of their case and also raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
9.         The first question, that falls for consideration, is, as to whether, this Commission has got 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 contents of the Buyer’s Agreement, that it has specifically been stated that the Company i.e. Unitech is a Public Limited, having its Marketing Office at SCO 189-90-91, Sector 17C, Chandigarh. Furthermore, it is also evident, that an amount in the sum of Rs.2,77,164/- vide cheque dated 05.12.2009, was also received by Regional Office of opposite parties no.1 and 3 at Chandigarh, as the same bore their address thereon, as Regional Office, SCO 189-191, Sector 17-C, Chandigarh-160017. Not only as above, it has been candidly admitted by opposite parties no.1 and 3, in their joint written reply that they had received payment towards price of the said unit, from the complainants, at their Chandigarh Office. If that is so, it can safely be said that the Marketing Office of the Company (Unitech) at Chandigarh, was actively playing a significant role, in respect of the transaction in question, meaning thereby that it was actually carrying on business for gains, from Chandigarh. Under these circumstances, it can very well be said that this Commission, at Chandigarh, has territorial jurisdiction, to entertain and decide this complaint, in view of Section 17 (2) (a) (b) and (c) of the Act.

                Not only as above, since it has been proved on record that Marketing office of the Company is located at Chandigarh and the fact that the details of the project were given to the complainants, from that office only, meaning thereby that the project was marketed from Chandigarh;  in that case also, this Commission has territorial jurisdiction to entertain and decide this complaint, in view of law laid down by the Hon’ble Supreme Court of India in State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839, in which it was held that the Court(s), in whose Jurisdiction, products/goods are marketed, will have the territorial Jurisdiction to entertain and decide a complaint. Similar findings were given by the National Commission, in a case titled as Parsvnath Developers and anr. Vs. Som Nath Sharma and 2 ors., First Appeal No.1613 of 2016, decided on 21.03.2017. Relevant contents of the said order read thus:-

“Regarding the question of territorial jurisdiction, the some part of cause of action accrues in Delhi as the agreement was signed at New Delhi.  The  payment  was received at Panchkula in the office of OPs 1 to 3.  Similar issue was decided by this Commission in the case of Ravinder Kumar Bajaj vs. Parsvnath Developers Pvt. Ltd. & Ors., first appeal No. 515 of 2016 decided on 23.08.2016 qua same very builder.  It was held that “officers of opposite parties no. 1 to 3 sitting in Branch Office at Chandigarh were actively participating in marketing and propagating the project, in question.  They were dealing with the complainants throughout, by receiving their letters qua progress at the spot and also accepted payment made through cheques.  In view of above, objection raised in this regard, stands rejected.”

 

                In view of above, objection taken by opposite parties no.1 and 3, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

10.         Another objection taken by opposite parties no.1 and 3, with regard to pecuniary jurisdiction of this Commission, also deserves rejection. It may be stated here that according to Section 17 of the Act, the State Commission shall have jurisdiction to entertain the complaints, where the value of the goods or services and compensation, if any claimed, exceeds Rs.20 lacs but not exceeds Rs.1 crore. Similar view was expressed by larger Bench of the Hon’ble National Commission, in a case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  In the present case, if the total value of the flat, in question, i.e. Rs.27,54,214/-, plus compensation claimed by the complainants, is added, it will definitely fall above Rs.20 lacs and below Rs.1 crore, as such, this Commission is vested with pecuniary jurisdiction. In view of above, objection raised by opposite parties no.1 and 3, in this regard, being devoid of merit, must fail and the same stands rejected.
11.         To defeat claim of the complainants, another objection was raised by opposite parties no. 1 and 3, that the complainants are speculators, as they have purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) of the Act. It may be stated here that there is nothing, on record to show that the complainants are property dealers and are indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by  opposite parties no.1 and 3, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. 

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no.1 and 3, in their written reply, therefore, being devoid of merit, is rejected.  

12.         An objection was also raised by opposite parties no.1 and 3 that the dispute being related to contractual nature, the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainants hired the services of the opposite parties, for purchasing the unit, in the manner, referred to above. According to condition no.4.a.(i) of the Agreement, physical possession of the unit, was to be delivered by the opposite parties, within a period of 36 months, from the date of execution of the same (Agreement) i.e. latest by 21.10.2012 alongwith all basic amenities as mentioned in Article 2.a.(iii) of the Agreement. By not doing so, the opposite parties have breached the terms and conditions of the said agreement, leading to deficiency in providing service and adoption of unfair trade practice. 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 as above, Section 3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by them, as they fall within the definition of consumer. In this view of the matter, objection taken by opposite parties no.1 and 3, in this regard, being devoid of merit, must fail, and the same stands rejected.

                The above objection taken by opposite parties no.1 and 3 is also bereft of merit, in view of latest judgment passed by the Hon’ble National Commission, titled as M/s. Karwa Developers & 3 Ors. Vs. Shree Vinayak Co-Operative Housing Society Ltd. & 3 Ors., First Appeal No. 980 of 2016,  decided on 3^rd  March, 2017, wherein, a similar plea of the builder was negated, while holding as under:-

“We also do not find any substance in the plea taken by the appellant that under clause 14(a) of the development agreement, the complainant was required to file a civil suit under the Specific Relief Act only, because they were asking for monetary relief.  The State Commission rightly stated that the relief sought in the complaint were on account of deficiencies committed by the OP Developers, vis-à-vis, the society.  Since there is a specific clause in the agreement for giving the possession of the flat within specific time frame and penalty has been provided if the developers failed to develop the same, the society was well within its rights to file consumer complaint against the OP builder.”

         

13.         It is not in dispute that the opposite parties have failed to deliver possession of the unit, in question, within the stipulated period or even till date, for want of construction at the site. The complainants have sought refund of the amount paid, alongwith interest, compensation etc. It is to be analyzed as to whether, in view of facts noted above; pleadings on record and arguments raised, it is open to the complainants, to claim above said relief or not.

                It is not in dispute that the complainants purchased the unit, in question, for which Buyer’s Agreement was signed between the parties on 22.10.2009. Constructed unit was sold in favour of the complainants, for an amount of Rs.27,54,214/-, which includes basic sale price, external development charges, etc. In all, the complainants paid an amount of Rs.5,26,422/-. It is also not disputed that after receiving the said amount, no further demand was ever raised by the opposite parties, from the complainants, as such, the question of making payment of remaining amount did not at all arise. As per condition no. 4.a.(i) of the Agreement, possession of the built-up unit was to be delivered to the complainants, within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions i.e. on or before 21.10.2012. As stated above, before delivery of possession, as per condition no.4.b. of the Agreement, it was incumbent for the opposite parties, to give notice to the complainants. In case of delay in handing over possession of the unit, beyond the period of 36 months, subject to force majeure circumstances, it was further provided in condition no.4.c. in the Agreement that penalty @Rs.5/- per square feet, per month of the saleable area, for the period of delay in delivery of possession of the flat shall be paid by the opposite parties, to the complainants. The date of offer of possession of the unit i.e. 21.10.2012 already stood expired. Now it is January 2018. More than five years have lapsed.

                Contention of Counsel for the complainants that construction at the spot is virtually stopped, needs acceptance. By the date, when arguments were addressed before us, possession has not been offered to the complainants. It is not a case of the opposite parties that possession of the unit was ready to be delivered by the stipulated date, but the complainants have refused to come forward to accept the same (possession). Rather, at the time of arguments, Counsel for opposite parties no.1 and 3 failed to give any positive date/time, as to when, construction, if started now, will be completed and possession of the constructed unit will be given. In the written reply also, no commitment was made, as to by which time, possession of the unit will be delivered, after construction. In para no.12 of the complaint, it is specifically stated by the complainants that, at the site, even construction of tower, in question, has not been started. In the entire reply filed, no satisfactory answer was given to the said averment. At the time of arguments, we specifically asked Counsel for opposite parties no.1 and 3, as to whether above fact is correct or not, she failed to give any answer to the query raised. Above fact clearly indicates that construction of the said tower has not yet been started.

                Since, this much has not been made clear, as to whether, construction of flats had taken place or not, as such, it can easily be said that delivery of possession thereof is not feasible, in the near future. Qua this very project, in large number of cases, it has been found as a matter of fact that construction has come to stand still. As stated above, even at the time of arguments, no commitment was made to deliver possession of the unit, in near future.

                At the same time, not even a single convincing document has been placed on record, by opposite parties no. 1 and 3 to prove that the unit, in question, is habitable or that the development at the project is complete in all respects. It is well settled law that the onus to prove that the project has been completed and the area/site, in question, is fully developed, is on the builder/opposite parties. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, it is very strange that not even a single document has been placed on record, by opposite parties no. 1 and 3, in respect of the flat, in question, to prove that the construction is complete and they are actually ready for offer and delivery of possession. In case, all the development activities had been undertaken and construction of the flats is complete at the project site, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development and construction activities, had been undertaken and completed at the site or not, but they failed to do so. At the same time, the opposite parties were also required to produce on record, a copy of the occupation and partial/final Completion Certificates (if obtained), having been issued by the Competent Authorities, which could be said to be best evidence, to prove their case, but they miserably failed to do that also. Mere placing on record an application dated 03.02.2016, allegedly sent to the Competent Authorities, seeking issuance of partial completion certificate in respect of the project, in question, is of no help to the opposite parties.

                Under above circumstances, it can be said that there is a material violation on the part of the opposite parties. At the same time, it is also a settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon’ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, held as under:-

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

 

                However, in the present case, as stated above, construction of the unit has not even been started, what to speak of delay in offering possession thereof. It is not the case of the opposite parties that construction could not be completed on account of some force majeure circumstances, actually encountered by them, as such, they be granted reasonable extension of time, as per Clause 8 (b) of the Agreement. Not even an iota of evidence has been placed on record to prove that the opposite parties suffered any force majeure circumstances. Under these circumstances, the complainants are held entitled to get refund of amount deposited by them. In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

                No doubt, a plea was also taken by opposite parties no.1 and 3, that delay aforesaid, is attributable to the PSPCL and GMADA, as they took a long time to grant approval for supply of electricity to the project. It may be stated here that mere bald plea taken by opposite parties no.1 and 3 has no legs to stand. To substantiate their stand, opposite parties no.1 and 3 were required to place on record cogent and convincing evidence on record, to convince this Commission that despite the fact that every step was taken at their end, but the said Authorities delayed the matter, unnecessarily leading to delay in completing the project. Had this been actually the case of the opposite parties, they would have definitely taken up the matter with the Competent Authorities, by sending letters followed by reminders, to grant approval with regard to provision of electricity to the project.  However, no such, documents are on record. As such, it can very well be said that such a plea has been taken by opposite parties no.1 and 3, just with a view to evade their liability. Under these circumstances, no help, therefore, can be drawn by opposite parties no.1 and 3, from Clause 8 (b) of the Agreement, relating to force majeure circumstances, as far as the present case is concerned. The complainants are certainly entitled to get refund of the amount deposited by them, towards price of the said unit, as held above.

14.         It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainants. It is not in dispute that an amount of Rs.5,26,422/-, was paid by the complainants, 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 @18%) as per Article 2.c. 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. 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  complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest @15% compounded quarterly, from the respective dates of deposits (less than the rate of interest charged by the opposite parties, in case of delayed payment i.e. 18% compounded quarterly, as per Article 2.c. of the Agreement), till realization.  
15.         As far as the liability of opposite parties no.1 and 3 including opposite parties no.2 and 4, is concerned, it may be stated here that once it has been proved on record that they were necessary parties to the Agreement; they also admittedly marketed the project, in question; and had also received payments from the complainants, through cheques, towards the said unit, as such, they are equally liable alongwith opposite parties no.5 and 6, to refund the amount paid by them (complainants). The Hon’ble National Commission, in a case titled as Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.765 of 2016, decided on 30.03.2016, has held that even the marketing agency, who sells out a project, if found deficient, at any stage and the project is not completed, as per commitment made, has to face the consequences of duping the gullible buyers, of their hard-earned money. In view of above, it is also held that impleading of opposite parties no.1 and 3 including opposite parties no.2 and 4, to the present complaint, in no way can be said to be misjoinder of parties. As such, the objection raised by opposite parties no.1 and 3, to the effect that they being only confirming parties are not liable to refund the amount paid by the complainants being devoid of merit, stands rejected.
16.         As far as the plea taken by opposite parties no.1 and 3, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their case, that they were ready with possession of the unit, to be delivered to the complainants, by the stipulated date but the complainants wanted to rescind the contract, on account of some unavoidable circumstances/financial constraints or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the opposite parties, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per law. In this view of the matter, the plea taken by opposite parties no.1 and 3, in this regard, has no legs to stand and is accordingly rejected.
17.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, is within limitation or not.  It may be stated here that since it is an admitted case that offer of possession of the unit, in question, could not be made till date, for want of construction and basic amenities, and on the other hand, amount deposited was also not refunded to the complainants alongwith interest, as such, there is a continuing cause of action, in their favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by limitation. The submission of Counsel for opposite parties no.1 and 3, in this regard, being devoid of merit, must fail, and the same stands rejected.
18.         No other point, was urged, by the contesting parties.
19.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties no.1 to 6, jointly and severally, are directed as under:-

1.       To refund the amount of Rs.5,26,422/- to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates of  deposits onwards.
2.       To pay compensation, in the sum of Rs.70,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3.       To pay cost of litigation, to the tune of Rs.22,000/-  to the  complainants.
4.       The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of two (2) 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 @18% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

20.         However, it is made clear that, if the complainants have 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 them (complainants).
21.         Certified Copies of this order be sent to the parties, free of charge.
22.         The file be consigned to Record Room, after completion.

Pronounced.

19.02.2018

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.