Chandigarh

StateCommission

CC/903/2016

Dr. Sulakhan Singh Bassi - Complainant(s)

Versus

Unitech Ltd., - Opp.Party(s)

ADS Jattana Adv. & MS Gill Adv.

09 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	903 of 2016
Date of Institution	:	09.12.2016
Date of Decision	:	09.03.2017

 

1. Dr.Sulakhan Singh Bassi son of Sh.Gurdev Singh Bassi
2. Dr.Jaspreet Kaur wife of Dr.Sulakhan Singh Bassi

Both residents of House No.738-A, Joginder Vihar, Phase-2, Mohali, District SAS Nagar (Punjab).

…… Complainants

 

V e r s u s

1. Unitech Limited, SCO No.189-90-91, Sector 17-C, Chandigarh, through its Manager/Managing Director/Authorized Representative.
2. The Managing Director, Unitech Group, Real Estate Division, Ground Floor, Signature Towers, South City-I, N.H-8, Gurgaon-122001, Haryana.
3. The Managing Director, Unitech Limited, # 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.A.D.S. Jattana, Advocate for the complainants.

Mrs.Vertika H. Singh, Advocate for opposite parties

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The facts in brief are that, the complainants purchased a floor/flat bearing No.0092, Block-D, Ground Floor, in the project of the opposite parties, namely ‘Executive Floors’, Sector 97, Uniworld City, Mohali, Punjab. Total price of the said unit was fixed at Rs.62,29,870/-, which included basic price, external development charges etc. Buyer’s Agreement was executed between the parties, on 13.05.2011. As per Clause 4(a) (i) of the Agreement, possession of the constructed unit was agreed to be delivered within 12 months, from the date of signing of the above said Buyer’s Agreement i.e. on or before 12.05.2012 subject for force majeure circumstances. The opposite parties were liable to pay compensation @Rs.5/- per square feet, per month of the saleable area of the unit, in the case of failure to deliver possession by the stipulated date. On demand raised from time to time, the complainants paid total amount of Rs.62,29,870/- towards price of the said unit. Out of the said deposited amount, the complainants had paid an amount of Rs.49,83,000/-, after raising housing loan from the HDFC Bank, vide Tripartite Agreement dated 13.06.2011 Annexure C-2, for which they are paying equal monthly installments. However, possession of the unit was not offered by the stipulated date or thereafter. Physical visits of the site reveal that construction and development work had stopped. Despite numerous requests having been made to the opposite parties, they failed to do the needful, by offering possession of the built-up unit to the complainants or by making payment of delayed compensation. After waiting for sufficient time, when possession of the unit was not delivered to the complainants, left with no alternative, they purchased a flat in Army Flats, Phase-4, Mohali, on 19.07.2016. Thereafter, legal notice dated 22.09.2016 was served upon the opposite parties, seeking refund of the amount paid, alongwith interest and compensation, but they failed to get any response. It was averred that the aforesaid acts of the opposite parties amounted to indulgence into unfair trade practice and deficiency in providing service to the complainants.

2.         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 deposited alongwith interest; compensation for mental agony and physical harassment; compensation for the period of delay; litigation expenses etc.
3.         Upon notice, reply was filed by the opposite parties. Disputing territorial jurisdiction of this Commission, to entertain the complaint, it was stated that Buyer’s Agreement was executed at New Delhi; demands were raised from Gurgaon Office; receipts were also issued from the said office, and the Branch Office at Chandigarh, at no time did any act, which may give any cause of action to the complainants to invoke territorial jurisdiction of this Commission. Status of the complainants as consumer, was also disputed by stating that they had purchased the said unit for future gain, as such, they being investors, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Act. Another flat was purchased by the complainants, as admitted by them, in their complaint. Pecuniary jurisdiction of this Commission, was also challenged, while placing reliance on the ratio of judgment of Larger Bench, passed by the National Consumer Disputes Redressal Commission, New Delhi (National Commission), titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016. It was also averred that in terms of Clause 8.b. of the Agreement, it was open to the opposite parties to ask for further extension of time to handover possession of the unit, on account of force majeure circumstances, under which construction/development work could not be completed.
4.         On merits, it is admitted that the complainants had purchased the unit, in question, from the opposite parties. Price of the said unit and the payments made by the complainants, in respect thereof, as mentioned in the complaint, is also not disputed. Execution of the Agreement aforesaid, between the parties, is also not disputed.  It is stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was also not disputed that as per Article 4.a.(i) of the Agreement, the  opposite parties were to hand over possession of a fully constructed unit, to the  complainants within a period of 12 months, from the date of execution of the same (Agreement), subject to force majeure conditions. It is clarified that the opposite parties could not complete the construction/ development work and hand over possession of  the unit to the  complainants, as there was global meltdown/recession of the economy worldwide, resulting into financial hardships and also due to objection raised by the Punjab State Power Corporation Limited (PSPCL), a number of times, as such, electricity could not be made available at the site, by the opposite parties, due to which, rest of the construction/development work and providing of the basic amenities was delayed. It is stated that construction/development work at the site, is being carried out, in full swing and the opposite parties are making sincere efforts to hand over possession of the unit, to the complainants at the earliest. It is averred that for any delay, stipulated penalty has been provided in the Agreement, which safeguarded rights of the complainants, in case, they are eligible for that. It was also stated that the opposite parties vide letter dated 03.02.2016, have applied to the Competent Authority, to issue partial completion certificate, in respect of the project, in question. It was averred that basic amenities at the site are complete. It was stated that in terms of Clause 2 (e) of the Agreement, in case, the buyer cancels the allotment, and/or seek refund of the amount deposited, the opposite parties are at liberty to forfeit the booking/earnest amount, out of the deposited amount, as the case may be. It was pleaded that the complaint is defective, as application for filing a joint complaint was not moved by the complainants. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
5.         The parties led evidence in support of their case. 
6.         We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully.
7.         Before making any reference to the merits of the case, we will like to decide the objection raised by the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It is necessary to mention here that, as per admitted facts, the complainants have sought refund of the amount paid i.e. Rs.62,29,870/- alongwith interest @24% p.a.; compensation for the period of delay in handing over possession of the unit @Rs.5/- per square feet, per month of the saleable area totaling to Rs.5,92,680/-, with additional amount of Rs.8,980/- per month, as also interest, till realization; compensation to the tune of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation to the tune of Rs.5 lacs. At the time of arguments, it is argued by Counsel for the opposite parties that if the entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and in that event, it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra).  

                We are not going to agree with the submission raised. This Commission, in the case of Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, by relying upon the ratio of judgment titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC), held that when determining pecuniary jurisdiction, in a complaint, component of interest claimed, is not to be added in the relief sought. In that case, it was recorded as under:-  

“In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/ Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

 

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

 

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

 

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

 

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

 

In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected. ”

       

                Thus, in the present case also, if interest is not added to the entire claim raised, it will remain below Rs.1 crore. In view of above, objection raised by Counsel for the opposite parties stands rejected.

8.         The contention of Counsel for the opposite parties that this Commission lacks territorial jurisdiction to entertain and decide the complaint, needs to be rejected. In the instant case, it has been candidly admitted by the opposite parties, that they have Marketing Office at Chandigarh i.e. at SCO No.189-90-91, Sector 17-C, Chandigarh. Furthermore, it is evident from the document at page 55 of the file, that substantial amount of Rs.42,74,902/- was received by Regional Office of the opposite parties at SCO No.189-191, Sector 17-C, Chandigarh. If it is so, this Commission has territorial jurisdiction to entertain and decide this complaint, in view of law laid down by the National Commission, in a case titled as Ravinder Kumar Bajaj Vs. Parsvnath Developers Pvt. Ltd. & 3 ors., First Appeal No. 515 of 2016, 23.08.2016, wherein it was held as under:-

“Since in the Grounds of Appeal, a specific averment is made by the Appellant to the effect that in the year 2007, when the subject flat was booked, the Respondent Company did have a Branch office at Chandigarh, where the payments in respect of the project used to be received regularly, on a pointed query, learned Counsel appearing for the Company very fairly states, on instructions, that the stand of the Appellant is correct.

In light of the statement by learned Counsel for the Respondent Company, I am of the view that in the present case, the State Commission UT, Chandigarh has the Territorial Jurisdiction to adjudicate upon the Complaint filed by the Appellant”.

                Besides as above, when we look into the documents placed on record, by the opposite parties, relating to seeking permissions from the Competent Authorities, in relation to the project, in question, it reveals that correspondence took place between Regional Office of the opposite parties at Chandigarh and the Authorities concerned, for release of electricity connection and to complete other formalities, which are necessary to develop the project. On the basis of above facts, it is held that since 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 Counsel for the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected. 

9.         To defeat claim of the  complainants, another objection was raised by Counsel for the opposite parties, that the complainants are investors, 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) (ii) of the Act. They have purchased another flat, as mentioned in their complaint.

                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. On the other hand, the complainants, in paragraph no.7 of their complaint have specifically stated that the unit, in question, was purchased by them, for their residential purpose. It was further stated that by them in the complaint, that when the opposite parties failed to deliver possession of the unit, in question, left with no alternative, they purchased a flat, in Phase 4, Mohali, Punjab, so that they are able to reside in their own house. On the other hand, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, 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. Not only as above, under similar circumstances, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

 

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. The complainants thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Counsel for the  opposite parties, being devoid of merit, is rejected.  

10.         Another objection was raised by Counsel for the opposite parties that 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 Article 4.a.(i) of the  Agreement, the  opposite parties were liable to deliver physical possession of the constructed unit, in the developed project, within a period of 12 months, from the date of execution of the same (Agreement) i.e. on or before 12.05.2012, alongwith all basic amenities as mentioned in Article 2.a.(iii) [at page 20 of the file) of the Agreement. However, by not doing so, the opposite parties breached the terms and conditions of the 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 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, the objection raised by Counsel for the  opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

11.         It is apparent on record that the opposite parties have failed to discharge their promise made vide Agreement dated 13.05.2011. Possession of the constructed unit, in a developed project was to be delivered within 12 months, from the date of execution of the Agreement. Admittedly, the entire sale consideration towards price of the unit stood paid. At the time of arguments, Counsel for the opposite parties has failed to commit about the period within which, possession of the unit can even now be delivered. Even in the written reply, no definite time period has been given, within which, possession of the unit can be delivered in near future. It has only been stated that construction work is in full swing and possession of the unit will be delivered at the earliest.

                In the written version, the opposite parties, frankly admitted that possession of the unit, in question, could not be offered to the complainants, by the stipulated date, as they had failed to complete the construction and development work, on account of extreme financial hardship, due to recession in the market/global meltdown, and also on account of non-provision of electricity in the said project, by the Punjab State Power Corporation Limited (PSPCL). It is significant to note here that even partial completion certificate has not been obtained by the opposite parties, till date, what to speak of obtaining final completion certificate, which is mandatory, before delivery of possession of the unit. Admission made by the opposite parties, itself makes it clear that they have not obtained necessary approvals/sanctions from the PSPCL, as a result whereof, they were not provided with electricity, for the project in question. Still, the opposite parties are working on obtaining permissions, from the PSPCL/GMADA.

                Secondly, when the opposite parties, had already received the entire sale consideration, towards the unit(s), from the allottee(s) like the complainants, then it does not lie in their mouth to say, that they faced extreme financial hardship, due to recession in the market, as far as the project, in question, is concerned. It is not that the  opposite parties were, in the first instance, required to complete the construction of flats and develop the project, by arranging funds out of their own sources, and, thereafter, the units were to be sold to the allottees, on future payment basis. Had this been the case of the opposite parties, only in those circumstances, the plea with regard to facing extreme financial hardship would have been considered to be correct, by this Commission.

                Even otherwise, the said difficulty/ground i.e. recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the construction and development work at the site. A change in economic or market circumstances affecting the profitability of a contract or the circumstance, is not regarded as a force majeure condition. Neither any new legislation was enacted nor an existing rule, regulation or order was amended, stopping suspending or delaying the construction/development work of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. There is no allegation of any lockout or strike by the labour, at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite parties or the contractors engaged by them, at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God, which could have delayed the completion of construction/development work in the project, within the time stipulated in the Agreement. A similar question fell for determination before the Hon`ble National Consumer Disputes Redressal Commission, New Delhi, in a case titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  2015 (4) CPR 34. The National Commission, in that case, while rejecting the plea of the builder, held as under:-

“Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.

Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the  complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the  opposite parties or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word ‘slow down’ having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.”.

 

                The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. The opposite parties, therefore, cannot take shelter under Article 8.b. of the Agreement, for extension of period, for delivery of possession of the unit. By making a misleading statement, that  possession of the unit, in question, would be delivered within a period of 12 months, from the date of execution of the Agreement but on the other hand, by not abiding by the commitments made, the opposite parties were not only deficient, in rendering service, but also indulged into unfair trade practice.

12.         It has been proved on record that there was a material violation on the part of the opposite parties, in not delivering possession of the unit, by the stipulated date or thereafter. It is 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 held by the 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.”

 

13.         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.”

 

14.         Further, 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 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”.

 

                Under these circumstances, it is held that since there was a material violation on the part of the opposite parties, in not offering and handing over possession of the unit by the stipulated date and also still, after expiry of period of more than about 05 years of the stipulated date, position is the same, the complainants are 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.

15.         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.62,29,870/- 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, (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. 
16.         Since it has already been held above that the complainants are entitled to refund of the amount deposited, alongwith interest and compensation, as such, plea taken by Counsel for the opposite parties, that the opposite parties are ready to pay compensation for the period of delay, as per the Agreement, has no legs to stand and is accordingly rejected.

                In the same manner, the prayer made by the complainants, for issuance of directions to the opposite parties for making payment of delayed compensation for the period of delay, in handing over possession of the unit, also cannot be accepted.

17.         As far as the plea taken by the opposite parties, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not the case of the opposite parties that they were ready with possession of the unit, in question, 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 were 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 the terms and conditions of the Agreement. In this view of the matter, the plea taken by the opposite parties, in this regard, has no legs to stand and is accordingly rejected.
18.         To defeat the claim of the complainants, an objection was also raised that since application for filing a joint complaint is not filed, as such, the complaint is liable to be dismissed on this ground alone. We are not going to agree with the contention raised.  From the perusal of contents of the complaint, it reveals that the same has been signed by both the complainants. It was for this Commission, to satisfy itself, as to whether, the complaint filed is maintainable or not. Once, notice has been issued by this Commission, in this complaint, permission is deemed to have been given to the complainants to file this complaint, jointly. Even otherwise, the proceedings before the Consumer Fora, are summary, in nature. The Consumer Protection Act, 1986, is a beneficial legislation, to provide speedy, inexpensive and hassle free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. In view of above, the plea taken by the opposite parties stands rejected.
19.         No other point was urged by Counsel for the parties
20.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties, jointly and severally, are directed as under: -

1.       To refund the amount of Rs.62,29,870/- alongwith interest @15% compounded quarterly, from the respective dates of deposits onwards, to the complainants.
2.       To pay compensation, in the sum of Rs.2 lacs, 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.33,000/- to the complainants.
4.       The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @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.

21.         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).
22.         Certified Copies of this order be sent to the parties, free of charge.
23.         The file be consigned to Record Room, after completion.

Pronounced.

09.03.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 Rg.