State Consumer Disputes Redressal Commission
Priya Arora vs M/S Ats Estate Private Limited on 14 September, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 120 of 2017 Date of Institution : 08.02.2017 Date of Decision : 14.09.2017 Priya Arora wife of Pankaj Bansal, Pankaj Bansal son of Ramesh Kumar Bansal, Both residents of C-68, Spangle Heights, Fifth Floor, Dhakoli, Zirakpur, Mohali - 160008. ......Complainants Versus M/s ATS Estate Private Limited, SCO No.41-42, Sector 8-C, Madhya Marg, Chandigarh through its Managing Director/Authorized Officer/Branch Officer. M/s ATS Estate Private Limited, having its Corporate office at ATS Tower, Plot No.16, Sector 135, Noida, through its Managing Director/Authorized Officer. M/s Dynamic Colonizer Pvt. Ltd., having its registered office at 711/92, Deepali, Nehru Place, New Delhi. HDFC Limited, SCO No.153-155, Sector 8-C, Madhya Marg, Chandigarh through its Branch Manager. ..... Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by:
Sh. Sandeep Khunger, Advocate for the complainants.
Sh. P. K. Khindria, Advocate for Opposite Parties No.1 to 3.
Ms. Anjali Moudgil, Advocate, proxy for Ms. Rupali Shekhar Verma, Advocate for Opposite Party No.4.
PER DEV RAJ, MEMBER The facts, in brief, are that lured by proclamations made by Opposite Parties No.1 to 3 in various newspapers and advertisements, the complainants vide application form dated 14.12.2012 (Annexure C-1) booked a flat bearing No.7104, 10th Floor, Tower No.7 by depositing Rs.1,00,000/-. Subsequently, the complainants deposited Rs.4,00,000/- with Opposite Parties No.1 to 3 on 23.12.2012 and they were issued allotment letter dated 25.12.2012 (Annexure C-2). Thereafter, vide letter dated 01.02.2013 (Annexure C-3), the complainants were informed that construction on the tower/building, wherein the flat, in question, was situated, started in December 2012 and the work was in full swing. A Buyer's Agreement was also executed between the complainants and Opposite Parties No.1 to 3 on 13.02.2013 (Annexure C-4). The complainants opted for construction linked payment plan. The complainants obtained loan from Opposite Party No.4 - HDFC Ltd. to the extent of Rs.41,88,000/- vide approval letter dated 10.06.2013 (Annexure C-5). The complainants, in all, paid an amount of Rs.38,51,956/- as per detail given in Para 2(k) of the complaint. The last demand raised by Opposite Parties No.1 to 3 was in March 2015, which was duly paid.
2. It was further stated that as per Clause 14 of the Agreement, possession of the unit was to be handed over within 36 months with a grace period of 6 months from the date of actual start of construction. It was further stated that taking the date of start of construction as 01.12.2012, possession was to be handed over by 01.12.2015. It was further stated that all payments were collected by the official of Opposite Parties No.1 to 3 either from the office of complainant No.1 at Chandigarh or from their residential addresses. It was further stated that the complainants did not receive a single intimation after March 2015 till date. It was further stated that the complainants visited the site at Derabassi and were shocked to know that construction work had stopped and only a basic skeleton structure up-to 12 storeys has been built. The complainants immediately contacted Opposite Parties No.1 to 3 and sought refund of the deposited amount. It was further stated that recently on visiting the site on 10.12.2016, it transpired that the development at the spot is completely at a standstill.
3. It was further stated that cause of action accrued to the complainants in March 2015, when last payment was received by Opposite Parties No.1 to 3 and lastly on 10.12.2016, when the complainants visited the site. It was further stated that whole transaction between the parties had taken place at Chandigarh.
4. Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of Opposite Parties No.1 to 3, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to Opposite Parties No.1 to 3 to refund the amount of Rs.38,51,956/-alongwith interest @24% p.a. compounded quarterly, from the respective dates of deposits; to clear the outstanding amount as on date of payment of Opposite Party No.4 at the first instance and then pay the balance amount to the complainants; pay Rs.5 Lacs as compensation for inconvenience, mental harassment & damages suffered by the complainants due to deficiency in service on the part of Opposite Parties No.1 to 3 besides payment of Rs.1 Lac towards cost of litigation; and any other relief, which this Commission deems fit in the facts and circumstances of the case.
5. Opposite Parties No.1 to 3, in their joint written statement, took-up certain preliminary objections, to the effect, that by virtue of Clause 37 in the Buyer Agreement, only the Courts at Noida, Uttar Pradesh shall have the exclusive jurisdiction to decide the dispute, in question. Objection to the extent that the complainants are speculative investors as they purchased the unit, in question, with a motive to earn more profit by booking the unit was also taken.
6. On merits, it was stated that the complainants booked the apartment under construction linked plan and they were asked for payments only as per said plan and therefore, there could not be any grievance on that count. It was further stated that the delay in completion of project was unavoidable and beyond the control of Opposite Parties No.1 to 3. It was further stated that the complainants being fully satisfied with the approvals, clearances, sanctions etc, obtained by Opposite Parties No.1 to 3, made an investment of their own volition and not at their instance. It was further stated that the complainants were required to make the payment as per the payment plan and no payment was ever received in excess. It was stated that as per Clause 14 of the Agreement, the proposed date of possession of the unit, in question, was 36 months with a grace period of six months from the date of actual start of construction of that particular tower wherein the unit allotted to the complainants was situated. It was further stated that as per Clause 15 of the agreement, beyond 36 months' stipulated period, Opposite Parties No.1 to 3 were to pay compensation @Rs.5/- per sq. ft. super area per month, which was to be adjusted towards the due amount at the time of offer of possession. Receipt of email dated 15.01.2015 has been denied.
7. It was further stated that the complainants have admitted completion of building up to 12th floor itself whereas flat allotted to them is situated at 10th floor. It was further stated that the complainants were informed of the progress of the project from time to time. It was further stated that construction is being carried out by following due process of law and by having obtained the requisite approvals and sanctions. It was further stated that completion certificate shall be granted once the construction is completed. It was further stated that construction is in progress and shall soon be completed. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 to 3, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
8. Opposite Party No.4, in its written statement, stated that there is no allegation of deficiency in service against it. It was stated that as regards finance advanced by it to the complainants, the rights of the parties to the present lis are governed by loan agreement (Annexure R-4/1) and the tripartite agreement (Annexure R-4/2). It was further stated that in case of cancellation of the unit or in the contingency of termination of Buyer's Agreement, Opposite Party No.4 has the first charge/right to seek apportionment of its dues. It was further stated that the loan account of the complainants is regular till date and in case of any future default, Opposite Party No.4 reserves its right to proceed in accordance with the terms of the Loan Agreement. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.4, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
9. The parties led evidence in support of their case.
10. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
11. The first question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident on record that the application form for allotment of the unit, in question, was submitted at the Chandigarh address of the Opposite Parties i.e. 'ATS Estates Pvt. Ltd., Chandigarh Office: S.C.O. 41-42, Sector 8-C, Madhya Marg, Tel-0172-2725410-11". Since, as per document, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.
12. No doubt, in the written version, an objection was also taken by Opposite Parties No.1 to 3 that as per Clause 37 of the Agreement, only the Courts at Noida, Uttar Pradesh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC) , the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.
13. In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D. Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainants had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to them, to file the complaint. The submission of Counsel for Opposite Parties No.1 to 3, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
14. To defeat claim of the complainants, the next objection raised by Opposite Parties No.1 to 3 was that since the complainants had purchased the unit, in question, for investment/commercial purpose i.e. for resale, as and when there was escalation in the prices of real estate, as such, they would not fall within the definition of consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. It may be stated here that there is nothing, on record to show, that the complainants are property dealer(s), 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 to 3, mere bald assertion to that effect, cannot be taken into consideration. In Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Commission 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. The principle of law, laid down, in Kavita Ahuja's case (supra) 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently 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 house 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."
Therefore, in view of law settled by the National Commission in the aforesaid cases, the complainants fall within the definition of 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 to 3, in their written reply, therefore, being devoid of merit, is rejected.
15. Opposite Parties No.1 to 3, apart from above objections, also took an objection as regards arbitration by moving a Miscellaneous Application bearing No.508 of 2017 under Section 8 of Arbitration & Conciliation Act, 1996 for referring the matter to the Arbitration. The said application was disposed of by this Commission vide order dated 05.05.2017 by holding that the applicability of the arbitration process would be seen at the time of final arguments in the main case. Opposite Parties No.1 to 3 challenged the aforesaid order in First Appeal bearing No.1288 of 2017. The said appeal was dismissed by Hon'ble National Consumer Disputes Redressal Commission, New Delhi vide order dated 28.07.2017, which reads thus:-
"This appeal is directed against the order of the State Commission dated 05.5.2017 whereby the State Commission directed that the applicability of the arbitration would be seen at the time of final arguments in the main complaint. The aforesaid order was passed on the application of the appellant under Section 8 of Arbitration & Conciliation Act. Being aggrieved from the aforesaid direction, the appellant is before this Commission.
In view of the decision dated 13.07.2017, rendered by a Three-Members Bench of this Commission in Aftab Singh Vs. Emaar MGF Land Ltd. & Anr. CC 701 of 2015, the issue of applicability of Section 8 of the Arbitration & Conciliation Act has no more res-integra. I therefore find no ground to interfere with the direction given by the State Commission. The appeal is therefore dismissed."
Therefore, in view of ratio of aforesaid judgment in the case of Aftab Singh Vs. Emaar MGF Land Ltd. & Anr. (supra), the objection taken by Opposite Parties No.1 to 3, being devoid of merit, is rejected. Accordingly, the application aforesaid also stands dismissed.
16. An objection was raised by Opposite Parties No.1 to 3 that a dispute arising out of an agreement for sale of unit does not relate to any rendering of service within the meaning of Section 2 (1)(o) of the Act. It may be stated here, that the complainants hired the services of Opposite Parties No.1 to 3, for purchasing the unit. According to Clause 14 of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Parties No.1 to 3, they were to hand over possession of the apartment, in question, within a period of thirty six months with a grace period of six months from the date of actual start of construction of a particular tower building, in which the registration for allotment was made. 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"
17. From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act provides an alternative remedy. Even if, it is assumed that the complainants have remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of 'consumer', as stated above. In this view of the matter, the objection of Opposite Parties No.1 to 3 , in this regard, being devoid of merit, must fail, and the same stands rejected.
18. It is evident, on record, that after receipt of application for allotment of unit/apartment in their project, namely, 'ATS Golf Meadows Lifestyle', Opposite Parties No.1 to 3 vide letter dated 25.12.2012 (Annexure C-2) allotted Flat No.07104, Type 'C' on 10th Floor in Tower No.7 in the aforesaid project, situated at Village Madhopur, Tehsil-Derabassi, Distt. Mohali, Punjab, to the complainants. Further vide letter dated 01.02.2013 (Annexure C-3), it was intimated to the complainants that construction of aforesaid Tower bearing No.7 had started in December 2012 and the work was in full swing. Buyer Agreement (Annexure C-4) was executed between the complainants and Opposite Parties No.1 to 3 on 13.02.2013. As per Clause 1(h) of the Agreement, the basic sale price of the unit, in question, was Rs.52,35,000.00 besides payment of Power Back up charges (Rs.1,00,000.00) & maintenance deposit (Rs.50,000.00), totaling Rs.53,85,000.00. Payments towards the unit, in question, were to be made as per Construction Linked Payment Plan (Annexure - II) appended to the Buyer Agreement. The complainants, in all, paid an amount of Rs.38,51,956.00 to Opposite Parties No.1 to 3. It is also apparent that the complainants, in order to make part payment of the unit, in question, were sanctioned home loan of Rs.41,88,000/- by Opposite Party No.4 as is evident from letter of approval (Annexure C-5). Home Loan Agreement was executed on 13.07.2013 (Annexure R-4/1). A Tripartite Agreement dated 02.07.2013 (Annexure R-4/2) was also executed between the complainants, M/s ATS Estate Pvt. Ltd. (Opposite Parties No.1 to 3) and HDFC Ltd. (Opposite Party No.4). As is evident from letter dated 20.03.2017 (AnnexureR-4/3) issued by Opposite Party No.4 (HDFC), out of the sanctioned loan amount of Rs.41,88,000/-, an amount of Rs.20,06,279/- was disbursed and as on the date of said letter i.e. 20.03.2017, the total outstanding loan amount including all dues in the loan account is Rs.18,63,901/-.
19. The core question, that now falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainants and whether the complainants are entitled to seek refund of the amount deposited by them alongwith interest. As per Clause 14 of the Agreement, possession of the unit was to be handed over within 36 months with a grace period of 6 months from the date of actual start of construction of a particular tower building. Further vide Clause 16 of the Agreement, on obtaining occupancy certificate from the competent authority, Opposite Parties No.1 to 3 were to make a written offer inviting the allottees (complainants) to take possession within 60 days of such offer. As admitted by Opposite Parties No.1 to 3 vide letter dated 01.02.2013 (Annexure C-3), construction of the Tower/building, wherein flat allotted to the complainants is situated, started in December 2012. Since construction, as admitted, started in December 2012, 36 months period including 6 months grace expired on 01.06.2016. Admittedly, possession of the allotted unit was not offered by Opposite Parties No.1 to 3 to the complainants within the stipulated period or till the date of filing of the instant case or till date. Alleging delay in offering possession and non-development at the site, the complainants, as averred in Para 2(t) of the complaint, sought refund of the deposited amount alongwith interest @24% per annum from the date of deposit. Undisputedly, the complainants and the HDFC Ltd. (Opposite Party No.4) had paid a sum of Rs.38,51,956/- by 04.03.2015, as per detail given in Para 2(k) of the complaint. As already stated above, Opposite Parties No.1 to 3 failed to offer/deliver possession of the unit, in question, to the complainants within the stipulated period i.e. by 01.06.2016. Even the compensation in terms of Clause 15 of the Agreement i.e. @Rs.5/- per sq. ft. of the super area per month, has not been paid to the complainants, which also amounts to deficiency in service and indulgence into unfair trade practice on the part of Opposite Parties No.1 to 3.
20. Out of total payment of Rs.38,51,956/- paid by the complainants to Opposite Parties No.1 to 3, as is evident from letter dated 20.03.2017 of Opposite Party No.4 (Annexure R-4/3), substantial payment in the sum of Rs.20,06,279/- was disbursed by HDFC Ltd. (Opposite Party No.4) as loan and as on 20.03.2017, outstanding amount against the loan amount is Rs.18,63,901/-. Besides, complainants have actually paid an amount of Rs.18,45,677.00 i.e. Rs.38,51,956.00 minus (-) Rs.20,06,279.00) from their own sources.
21. The complainants have not been offered possession of the unit, in question, by the due/promised date viz. 01.06.2016 and even till date. In such circumstances, Opposite Parties No.1 to 3 ought to have refunded the amount to the complainants when request for the same was made. Opposite Parties No.1 to 3 have no right to usurp the hard earned money of the complainants. By not offering possession within the stipulated period and by not refunding the amount to the complainants, Opposite Parties No.1 to 3 were deficient in rendering service and also indulged into unfair trade practices. It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015 decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder while holding as under:-
"I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant 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 alongwith reasonable compensation, in the form of interest."
In view of the above, it is held that since there was a material violation on the part of Opposite Parties No.1 to 3, in not handing over possession of the unit by the stipulated date, the complainants are entitled to refund of the amount deposited, alongwith interest and compensation.
22. 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 total amount of Rs.38,51,956/- was paid by the complainants, partly by obtaining loan from HDFC Ltd. (Opposite Party No.4), without getting anything, in lieu thereof. The possession of the unit, in question, which was due on 01.06.2016 has still not been delivered. During arguments, the Counsel for Opposite Parties No.1 to 3 could not give any firm date for delivery of possession. It was only stated that it could be offered within next 6 to 8 months. The amount paid by the complainants has been used by Opposite Parties No.1 to 3, for their own benefit and the complainants are empty handed. It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), 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. Considering the delay in offering possession, which is already of 1 year 3 months, grant of interest @12% would serve the ends of justice.
23. The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment, and injury caused to them. Counsel for Opposite Parties No.1 to 3 argued that compensation under Section 14(1)(d) of the Act could only be granted where there is specific allegation with particulars and proof of negligence. In the instant case, the possession, which was due to be delivered on 01.06.2016, has still not been offered/delivered. As already stated above and admitted by Counsel for Opposite Parties No.1 to 3, during arguments, it will take another 6 to 8 months to deliver the possession. There is already delay of 1 year 3 months and commitment to deliver the possession in the near future within a month or so is not there. Had the possession been offered by the due date, the complainants would have been in a position to utilize the unit for their residence. No doubt, Opposite Parties No.1 to 3, in their written statement stated that force majeure events occurred due to non-availability of steel, cement, building material and shortage of labour. The averment made is clearly a bald assertion and is not supported by any cogent evidence. Had it been so, Opposite Parties No.1 to 3 could indicate the period and events regarding non-availability of material and shortage of labour. Therefore, in the absence of any such evidence, on record, the plea regarding force majeure events, is a mere ground to cover up the delay. As such, this plea of Opposite Parties No.1 to 3, is not accepted being unsustainable in the eyes of law. Delay in possession is, thus, definitely proof of negligence of Opposite Parties No.1 to 3. Due to non-delivery of possession within the stipulated period, the complainants have suffered mental agony and physical harassment. However, compensation in the sum of Rs.5 Lacs, claimed by them, in our opinion, is on the higher side. In the facts and circumstances of the case, compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.1,50,000/-, if granted, would be adequate to serve the ends of justice.
24. No other point, was urged, by the Counsel for the parties.
25. For the reasons, recorded above, the complaint is partly accepted with costs against Opposite Parties No.1 to 3 only. Opposite Parties No.1 to 3 are, jointly and severally, held liable and directed as under:-
(i) To refund the amount of Rs.38,51,956/- to the complainants, alongwith interest @12% p.a. (simple), from the respective dates of deposits, till realization, within a period of 45 days, from the date of receipt of a certified copy of this order.
(ii) To pay an amount of Rs.1,50,000/- as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainants, within a period of 45 days from the date of receipt of a certified copy of the order.
(iii) In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then Opposite Parties No.1 to 3, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% p.a. (simple), from the date of filing the complaint, till realization and amounts mentioned in Clause (ii) above, with interest @12% p.a. (simple) from the date of filing the complaint till realization.
26. Since the complainants have availed loan facility from Opposite Party No.4 - HDFC Ltd., it is made clear that it (HDFC Ltd.) shall have the first charge on the amount payable, to the extent, the same is due against the complainants.
27. The complaint against Opposite Party No.4 (HDFC Limited) stands dismissed with no order as to cost.
28. Certified Copies of this order be sent to the parties, free of charge.
29. The file be consigned to Record Room, after completion.
Pronounced.
14.09.2017 [JUSTICE JASBIR SINGH (RETD.)] PRESIDENT (DEV RAJ) MEMBER (PADMA PANDEY) MEMBER Ad