State Consumer Disputes Redressal Commission
Tajinder Singh Bajwa & Anr. vs M/S Premium Acres Infrastech Pvt.Ltd. & ... on 6 February, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint No. : 156 of 2014 Date of Institution : 14.11.2014 Date of Decision : 06.02.2015 1] Tajinder Singh Bajwa S/o Sh.Mohinder Singh Bajwa, r/o Street No.2, Bank Colony, Sirhind, Distt. Fatehgarh Sahib, Punjab. 2] Ravinderpal Singh S/o Sh.Sukhwinder Singh r/o Village Rasidpur, P.O.Manupur, Distt. Fatehgarh Sahib, Punjab through his General Power of Attorney holder Sukhwinder Singh S/o Sh.Labh Singh, r/o Village Rasidpur, P.O.Manupur, Distt. Fatehgarh Sahib, Punjab. ......Complainants. Versus 1] M/s Premium Acres Infratech Pvt. Ltd., SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh through its Managing Director. 2] M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali). 3] M/s Premium Acres Infratech Private Limited, (Regd. Office) 17/6, Anand Parbat, Industrial Area, Near Gali No.10, New Rohtak Road, New Delhi 110005. 4] M/s Taneja Developers & Infrastructure Ltd., 9 Kasturba Gandhi Marg, New Delhi - 110001. 5] Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o H.No.1227, Sector 42B, Chandigarh 160036. Second Address: Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o House No.61-62, Sector 70, Mohali. ....Opposite Parties. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by:
Mrs. Vertika H. Singh, Advocate for the complainants.
Sh. Varun Katyal and Sh. D. S. Dhiman, Advocates for Opposite Parties No.1 to 3 and 5.
Sh. Manoj Vashisht, Advocate for Opposite Party No.4.
PER PADMA PANDEY, MEMBER The facts, in brief, are that the complainants purchased unit No.1101 in Mega Housing Project of TDI City in Sector 110-111, Mohali. It was stated that Opposite Party No.4 was the Master Developer whereas M/s Premium Acres Infratech Pvt. Ltd. had purchased the developed plots from Opposite Party No.4 and was developing the mega housing project under the name and style of 'TDI City'. It was further stated that the complainants applied for booking of a flat and they were allotted unit No.1101 measuring 1200 Sq. feet, as per Buyer Agreement dated 2.7.2011 (Annexure C-1), which was executed between them (complainants) and M/s Premium Acres Infratech Pvt. Ltd. It was further stated that as per Clause 9 of the Agreement, possession of the unit/flat, in question, was to be handed over within 24 months (18 months + 6 months grace period) from the date of execution of the same. It was further stated that the total cost of the flat was Rs.35,81,800/- including Rs.1,16,800/- as EDC and Rs.3,15,000/- as PLC, as per the Buyer Agreement. It was further stated that the complainants opted for Construction Link Payment Plan and payment of 50% of the total cost of the flat i.e. Rs.16,39,418/-, which included service tax of Rs.64,418/-, was duly made by them, as and when demanded by the Opposite Parties. It was further stated that the last payment of installment of Rs.3,15,000/- was made by the complainants on 24.10.2011 and the service tax of Rs.64,418/- was paid on 2.4.2013. Therefore, no further demand was raised by the Opposite Parties. Copy of statement of payment made by the complainants is Annexure C-2.
2. It was further stated that despite passage of approximately more than 1 year after the due date of handing over possession, the Opposite Parties failed to hand over the same. Thereafter, the complainants visited the site of the flat several times, but there was no progress in the construction work to the extent that not even a single brick was laid at the site. The complainants even met the concerned officials of the Opposite Parties several times to inquire about the status of the unit, but they were unable to give any kind of confirmation as to when the construction might start. It was further stated that the complainants bought the said unit due to the goodwill of Opposite Party No.4 but despite the mismanagement of affairs of Opposite Parties No.1 to 3 and 5, Opposite Party No.4 being a master developer, failed to keep any check on the work of M/s Premium Acres Infratech Pvt. Ltd.
3. Ultimately, the complainants sent a legal notice dated 20.09.2014 (Annexure C-3) through their Counsel for cancellation allotment of unit No.1101, as there was immense amount of delay in construction work and requested the Opposite Parties to refund the entire amount paid by them alongwith interest @18% p.a. but they did not respond to the said legal notice. It was further stated that the Opposite Parties charged an amount of Rs.1,16,800/- as EDC but they failed to develop the sector because there were neither any roads to approach the concerned site of the flat nor parks, street lights etc. It was further stated that as per Clause 4(s) (in fact 4(f) the Company was charging interest @18% p.a. in the event of delay in making payments by the allottees and, as such, the Opposite Parties should be made liable to refund the entire amount of the complainants alongwith interest @18% p.a. It was further stated that the Opposite Parties initially did not levy any service tax on the price of the flat but they started levying service tax @3.09% + 1% building cess. In fact, the complainants came to know from the demand letter that they started levying service tax. Even the Opposite Parties deducted the tax due to the Government from the amount already paid by the complainants and the amount, which was deducted was considered as not paid. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the "Act" only), was filed.
4. Opposite Parties No.1 to 3 & 5, put in appearance on 22.12.2014. In their joint written version, Opposite Parties No.1 to 3 & 5, took up certain preliminary objections to the effect that this Commission has no pecuniary jurisdiction to adjudicate the complaint, as the complainants had paid Rs.15,75,000/- excluding the service tax, which was non-refundable in nature and compensation claimed by them of Rs.5,00,000/- simply for the reason to meet the pecuniary jurisdiction and no explanation was given how and why they should be awarded the said compensation. It was further stated that this Commission has no territorial jurisdiction to adjudicate the present dispute, particularly when no cause of action had arisen at Chandigarh because the Registered Office of the Company is situated at Delhi and the flat is situated at Mohali. Even otherwise the complainants had chosen the jurisdiction of Delhi Courts while entering into the Agreement (Clause 36), which was ignored by them, while initiating the present complaint. It was further stated that the complaint was not maintainable because the complainants did not come under the purview of Section 2(d) of the Consumer Protection Act, 1986 and this flat was purchased by them for commercial purpose with a view to resell it. It was further stated that as both the complainants are not related to each other and even there was no explanation about how complainant No.1 and complainant No.2 were connected with each other. It was further stated that the present complaint was not maintainable under the Consumer Protection Act, as the same involved forgery of documents, suspected role in embezzlement, pricing and the dispute of area, which cannot be decided summarily and can only be dealt with by the Civil Court. It was further stated that after the cancellation of flat, replying Opposite Parties sold the property to third party, which was well within the knowledge of the complainants.
5. On merits, it was stated that the complainants agreed to purchase unit/flat No.1101 in the Mega Housing Project of TDI in Sector 110-111, Mohali. It was further stated that copy of the Buyer Agreement (Annexure C-1) was not a genuine document as the same was never signed by the authorized representative of the replying Opposite Parties and had been a genuine document, then it would have been signed by Mr.Sanjay Jain, who was the only authorized representative on behalf of the replying Opposite Parties. It was further stated that perusal of Annexure C-1 revealed that the same was not signed by the complainants and, as such, no Agreement was executed between the parties. Therefore, the complainants cannot claim possession of the said unit within a period of 24 months.
6. It was further stated that the basic sale price of the flat/unit No.1101 was Rs.31,50,000/- and besides this, the complainants were also liable to pay a sum of Rs.1,16,800/- as EDC and Rs.3,15,000/- as PLC. It was admitted that the complainants had opted for the Construction Link Payment Plan but they did not adhere to the schedule of payment, as mentioned in para No.4 of their written statement. It was admitted that the complainants paid a sum of Rs.16,39,418/- including service tax of Rs.64,418/- but the said payments were made by them upto demarcation stage only. Thereafter, the complainants voluntarily stopped the payments and even the payments made by them were not made on time. Due to this reason, as per terms and conditions of allotment letter (Annexure R-1), the complainants were liable to pay interest on the delayed payments. It was further stated that as per Clause 7 of the application, timely and due payment was the essence of the allotment and if there was a delay of more than 3 months from the due date in making the payments, then in that case, the replying Opposite Parties could cancel the allotment. The receipt of payment of Rs.64,418/- as service tax on 2.4.2013 was denied. It was further stated that Buyer Agreement on which the complainants relied, clearly stated that the Composite Sale Price (CSP) should be modified to add other charges such as service tax, building cess, electricity charges, sewerage charges, water charges, service tax on these services and interest free maintenance security and these amounts were liable to be paid by them. It was further stated that the replying Opposite Parties were always ready and willing to handover possession of the flat and the complainants were also duty bound to make the payments on time. It was further stated that the complainants could not take advantage of their own wrongs. It was denied that the complainants visited the site several times and rather, they were not interested in having possession of the flat. It was further stated that since the plan opted by the complainants was a Construction Linked Plan, which in essence was a self finance plan, so the progress in the development/ construction of flat, could not have been started until and unless the payments as per schedule mentioned in the allotment letter, was made by them.
7. It was further stated that legal notice was not received by the replying Opposite Parties. It was further stated that payment of service tax as well as building cess is a statutory duty of the complainants and they cannot deny their responsibility. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 to 3 & 5, nor they indulged into unfair trade practice.
8. Opposite Party No.4, put in appearance on 22.12.2014. In its reply, by way of affidavit of Sh. Rohit Gogia, its authorized signatory, Opposite Party No.4 stated that the complaint was not maintainable against it as there was no relationship of consumer and service provider between it and the complainants. It was further stated that Opposite Party No.4 is in the business of development of various residential and commercial complexes in various cities of India like Gurgaon, New Delhi, Agra, Moradabad, Sonepat, Kundli, Panipat, Karnal, Mohali and Chandigarh. It was further stated that apart from potential users, who seek allotments of individual plots, various investors also make their investments by making bulk purchases of plots in various townships developed/being developed by Opposite Party No.4. It was further stated that in the present case, Opposite Parties No.1 to 3, approached Opposite Party No.4 for purchase of 150 fully developed residential plots measuring 192 sq. yards each in order to develop them and to further sell off to the prospective buyers. It was further stated that Opposite Party No.4 is not having any interference with the development, and construction activity by Opposite Parties No.1 to 3 over the aforesaid 150 plots. It was further stated that Opposite Party No.4 is not even party to the Agreement dated 02.07.2011 executed between Opposite Parties No.1 to 3 and the complainants. It was further stated that the complaint is wholly misconceived against Opposite Party No.4. 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 unfair trade practice.
9. The Parties led evidence, in support of their case.
10. The complainants, filed rejoinder to the written statement of Opposite Parties No.1 to 3 & 5, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.1 to 3 & 5.
11. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
12. Admittedly, the complainants applied to the Company vide application dated 02.03.2011 for the allotment of unit No.1101 having an approximate area of 1200 sq. feet, as mentioned at page No.28 of the Buyer Agreement (Annexure C-1), which was executed between the complainants and M/s Premium Acres Infratech Pvt. Ltd. on 02.07.2011, at Chandigarh. It is evident from payment plan option attached with the Buyer's Agreement that the complainants opted for the Construction Linked Installment Plan (at page 35). The total basic sale price was Rs.31,50,000/-, which included EDC of Rs.1,16,800/- and PLC of Rs.3,15,000/- and the total price of the unit/flat, in question, came to be Rs.35,81,800/-. The Construction Linked Installment Plan, opted by the complainants, is extracted hereunder:-
Payment Milestones Basis of Calculation Amount in INR BSP (Basic Sales Price) 31,50,000.00 EDC 1,16,800.00 PLC 3,15,000.00 At the time of registration 20% of BSP 6,30,000.00 Within three months of allotment 10% of BSP 3,15,000.00 Within three months of first installment 10% of BSP 3,15,000.00 On commencement of demarcation of plot 10% of BSP 3,15,000.00 On casting of ground floor roof 7.5% of BSP 2,36,250.00 On casting of first floor roof 7.5% of BSP 2,36,250.00 On start of brick work 7.5% of BSP + 25% of EDC 2,65,450.00 On start of internal plastering 7.5% of BSP + 25% of EDC + 50% of PLC 4,22,950.00 On start of flooring 5% of BSP + 25% of EDC + 50% of PLC 3,44,200.00 On start of internal electrification 5% of BSP + 25% of EDC 1,86,700.00 On start of internal plumbing 5% of BSP 1,57,500.00 On final notice of possession 5% of BSP 1,57,500.00 Total Price 35,81,800.00
13. A perusal of the aforesaid chart shows that total price of the unit/flat was Rs.35,81,800/-, which was to be paid by the complainants. It is abundantly clear from Annexure C-2 that M/s Premium Acres Infratech Pvt. Ltd. received an amount of Rs.15,75,000/- from the complainants.
14. On the other hand, M/s Premium Acres Infratech Pvt. Ltd. admitted in para No.4 (page No.62) of their written statement that they had received an amount of Rs.16,39,418/- including service tax of Rs.64,418/- (Rs.15,75,000/- + Rs.64,418/-) from the complainants.
15. The first question, which falls for consideration, is, as to whether existence of Clause 36 in the Buyer Agreement, bars the territorial jurisdiction of this Commission, to entertain and try the complaint. In this regard, a specific application Under Order 7 Rule 11 C.P.C. was moved by Opposite parties No.1 to 3 & 5 before this Commission on 9.1.2015 for dismissing the complaint on the ground of lack of territorial jurisdiction. Reply to this application was filed by the complainants on 14.01.2015 contending therein that since a part of cause of action accrued to the complainants at Chandigarh and, as such, this Commission has the territorial jurisdiction to entertain and decide the complaint. Section 17(2) of the Act, being relevant, is extracted hereunder:-
"(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
Clearly the Buyer Agreement (Annexure C-1) was executed between the complainants and M/s Premium Acres Infratech Pvt. Ltd. on 02.07.2011 at Chandigarh. Further it (Agreement) bears the signatures of one Amit Jain resident of Chandigarh as authorized signatory of Opposite Parties No.1 to 3 & 5. Annexure C-2, which is letter dated 02.04.2013 written to the complainants by Opposite Parties No.1 to 3 & 5 was also on the Letter Head of their Chandigarh Office viz. SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh, which shows that Premium Acres Infratech Private Limited received an amount of Rs.15,75,000/- from the complainants. Even Opposite Parties No.1 to 3 and 5 also attached the price lists, Annexure R-4, (at page No.78 to 80) alongwith their written statement, which clearly shows the address mentioned on the same as SCO No.56-57, Sector 17-D, Third Floor, Opposite General Post Office, Chandigarh - 160017. As such, a part of cause of action definitely accrued to the complainants for filing the instant complaint, against the Opposite Parties, at Chandigarh. In this view of the matter, the objection of Opposite Parties No.1 to 3 & 5, that this Commission has no territorial jurisdiction to entertain and decide the complaint being devoid of any substance, stands rejected. Accordingly, the application dated 9.1.2015 moved by Opposite Parties No.1 to 3 & 5 under Order 7 Rule 11 C.P.C. for rejection of the complaint on the ground of jurisdiction stands dismissed. A similar question arose, before the National Commission, in Smt. Shanti Vs. M/s. Ansal Housing & Construction Ltd. (supra), wherein the National Commission held as under:-
"This appeal is directed against the order dated 9.4.2001 of the Delhi Consumer Disputes Redressal Commission non suiting the appellant on a preliminary issue holding that Delhi State Consumer Dispute Redressal Commission will have no jurisdiction to entertain the complaint.
What led the State Commission to pass this order was clause 24 of the agreement for allotment of residential flat to the appellant. It is stated that 'any dispute arising out of this agreement shall be subject to jurisdiction of Lucknow Courts only". State Commission also relied on the decision of the Supreme Court in the case of A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A.P. Agencies, Salem - AIR 1989 SC 1239 to hold that only the courts in Lucknow would have jurisdiction.
We do not think State Commission examined the whole issue in a pragmatic manner. Complainant is a consumer and raised a consumer dispute under the Consumer protection Act, 1986. To help and assist a consumer and to achieve the objects of the Act, Section 11 of the Act was amended. This Section relates to the jurisdiction of the District Forum. Now a complaint could be filed against the opposite party not only at the place where he actually or voluntarily reside or personally works for gain but also where he carries on business or has branch office. The words "carries on business or has a branch office" were added by the amending Act of 1993. Jurisdiction of a District Forum is exclusively covered by Section 11 of the Act. For this we do not have to refer any provisions of the Code of Civil Procedure. Any provision of the agreement which oust the jurisdiction of a District Forum even from a place where the opposite party has a branch office cannot be held to be valid or binding. Moreover, the clause on which the complainant was non-suited refers to the jurisdiction of Lucknow Courts. District Forum is not a court as understood in the Code of Civil Procedure. That clause in the agreement will have no meaning as far as jurisdiction of the District Forum where the opposite party has even branch office is concerned.
National Commission has already taken a view on this aspect of the matter. Accordingly the impugned order of the State Commission is set aside and the matter is remanded to the State Commission to decide the complaint in accordance with law. Party shall appear before the State Commission on 8.7.2002 for further directions. This appeal is disposed of as above."
It is, therefore, held that Clause 36 of the Agreement could not debar this Commission from entertaining and deciding the complaint.
16. The next question, which falls for consideration, is, as to whether this Commission has got the pecuniary jurisdiction to entertain and try the complaint. Section 17(1)(a)(i) of the Act is extracted hereunder:-
"17. Jurisdiction of the State Commission. -- (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain-- (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and"
Perusal of the reliefs claimed by the complainants in their complaint reveals that the complainants have sought refund of entire amount of Rs.16,39,418/-, paid by them, as part price towards the said flat, alongwith interest @18% p.a., from the respective dates of payments, till realization ; compensation, in the sum of Rs.5 lacs, for mental harassment & suffering and deficiency, in rendering service and cost of litigation, to the tune of Rs.50,000/-. Thus, the aggregate value i.e. deposited amount, compensation and litigation costs, claimed by the complainants, in the complaint, came to be around Rs.21,89,418/-, which exceeds the pecuniary jurisdiction of the District Forum. As such, this Commission has pecuniary jurisdiction to entertain and decide the complaint. The objection, taken by Opposite Parties No.1 to 3 and 5, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
17. The next question, that falls for consideration is, as to whether, the complainants fall within the definition of consumers or not? The Counsel for Opposite Parties No.1 to 3 and 5 submitted that the said flat was purchased by the complainants for commercial purpose i.e. for further reselling the same and earning profits. The Counsel for Opposite Parties No.1 to 3 and 5 further submitted that both the complainants are not relatives and even there is no explanation about how they are connected with each other as they have not mentioned anything in their application for filing the joint complaint. On the other hand, the complainants submitted in their rejoinder that the complainants are first cousins and their fathers are real brothers. They further stated that they could not afford to buy an individual flat for themselves and hence decided to buy it jointly. They further stated that moreover, their children are of growing age and they wanted to have an accommodation for them, when they grow older, as the prospects in Chandigarh and Mohali for education purpose are much wider and brighter than in any small town. The complainants further stated in their rejoinder that they had purchased the said flat for the reason being that they required a residential accommodation. The flat, which was allotted, in favour of the complainants, is a residential one and Opposite Parties No.1 to 3 and 5 did not allot the booth, where the complainants were to run commercial activity. No evidence was produced by Opposite Parties No.1 to 3 and 5, that the complainants are property dealers, who deal in the sale and purchase of the property, and, as such, they purchased the flat, in question, for the purpose of investment, with a view to resell the same, as and when, there is escalation, in the prices of real estate. Under these circumstances, it is held that the complainants availed of the services of the Opposite Parties, for consideration, for the purpose of allotment of the flat, in question, and therefore, they fell within the definition of a consumers. The submission of the Counsel for Opposite Parties No.1 to 3 and 5, therefore, being without merit must fail and the same stands rejected.
18. The next question, which falls for consideration, is, as to whether this Commission can adjudicate upon the present complaint, when there are allegations of fraud and forgery leveled by the Opposite Parties, against its Director and the complainants. Bare perusal of the Buyer Agreement reveals that the each page thereof bears the stamp and signatures of authorized signatory of Opposite Parties No.1 to 3 & 5. When the Agreement is duly signed by an authorized signatory of Opposite Parties No.1 to 3 & 5, they (Opposite Parties) they cannot resile from the contents of the same. It is not the case of Opposite Parties No.1 to 3 & 5 that they did not receive the amount deposited by the complainants. If the person who was authorized to sign the Agreement committed some fraud with Opposite Parties No.1 to 3 & 5, the liability for the same cannot be fastened upon the complainants. The Opposite Parties can proceed against him, as per the provisions of law but the rights of the complainants, being third parties, due to the acts of the Director of the Company, could not be affected. This was an internal affair of the Company vis-à-vis its Director who allegedly committed fraud with it (Company). Thus, this objection of Opposite Parties No.1 to 3 & 5, being devoid of merit also stands rejected.
19. The next question, that falls for consideration, is, as to whether, the complainants are entitled to the refund of amount, deposited by them, in the circumstances, referred to above. Opposite Parties No.1 to 3 and 5, failed to deliver the legal physical possession of the flat, in question, allotted in favour of the complainants, by the stipulated date. The complainants have already paid 50% of the total consideration of the flat, in question, and even till date there is no construction at all at the site to the extent that not even a brick has been laid. The complainants sent the legal notice (Annexure C-3) to the Opposite Parties and requested to refund the amount paid by them alongwith interest but they never bothered to reply the same. The complainants specifically stated in their rejoinder that they had not received any demand letter or any legal notice or any kind of cancellation letter from the Opposite Parties. The Opposite Parties without any intimation to the complainants, resold the said flat to the third party and even concealed the details of the third party to whom the flat was sold. They, therefore, had no right, to retain the hard earned money of the complainants, in the sum of Rs.16,39,418/-, deposited by them, towards the part price of flat, in question, without rendering them, any service. Since, the flat, in question, had not been constructed, even by the time, the complaint was filed, no alternative was left with the complainants, than to ask for the refund of amount, deposited by them. Even till date, M/s Premium Acres Infratech Pvt. Ltd. is unable to hand over the legal physical possession of the flat, in question. In our considered opinion, the complainants are entitled to the refund of amount of Rs.16,39,418/-, deposited by them. By not refunding the amount, deposited by the complainants, with interest, Opposite Parties No.1 to 3 and 5 were deficient, in rendering service.
20. The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount deposited by them, if so, at what rate. The amount of Rs.16,39,418/-, towards 50% of the price of flat, in question, was deposited by the complainants, which fact is not disputed. The hard earned money of the complainants was utilized by Opposite Parties No.1 to 3 and 5, for a sufficient longer period but they failed to give physical possession of the flat, in question. Even Opposite Parties No.1 to 3 and 5 cancelled the flat of the complainants and reallotted the same to the third party, without giving any intimation to them (complainants). Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. In case of delay, in deposit of installment(s), Opposite Parties No.1 to 3 and 5 were charging interest @18% P.A., as is evident from Clause 4 (f) of the Buyer s Agreement (Annexure C-1). Under these circumstances, in our considered opinion, if interest @9% P.A., on the amount deposited by the complainants, from the respective dates of deposits, is granted, that will serve the ends of justice.
21. The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to them, by not delivering the physical possession of the unit, to them. The complainants booked the unit/flat, with the hope to have a shelter over their head, but their hopes were dashed to the ground, when the Company, did not deliver possession of the same, despite the fact that they (complainants) had opted the Construction Linked Payment Plan and had already made the payment of Rs.16,39,418/- i.e. 50% of the total cost of the flat including service tax. Even Opposite Parties No.1 to 3 and 5 did not hand over the timely possession of the flat to the complainants, as per Clause 9 of the Agreement. It is relevant to mention that till date, there is no construction at all, at the site to the extent that not even a single brick has been laid and Opposite Parties No.1 to 3 and 5 received 50% of the amount from the complainants and used their money almost for three years from the date of execution of Agreement. The complainants, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of Opposite Parties No.1 to 3 and 5. In this view of the matter, the complainants, in our considered opinion, are entitled to compensation, for mental agony and physical harassment caused to them, at the hands of Opposite Parties No.1 to 3 and 5, to the tune of Rs.1 (one) lac, which could be said to be adequate and reasonable.
22. Coming to the liability of Opposite Party No.4, it may be stated here, that the Buyer Agreement (Annexure C-1) was executed between the complainants and M/s Premium Acres Infratech Pvt. Ltd. Even the services of Opposite Party No.4 were not hired by the complainants, and, as such, the question of payment of consideration to it never arose. Hence, the complaint against Opposite Party No.4 is liable to be dismissed.
23. No other point, was urged by the Counsel for the Parties.
24. For the reasons recorded above, the complaint is partly accepted with costs, against Opposite Parties No.1 to 3 and 5, in the following manner:-
(i) Opposite Parties No.1 to 3 and 5 are jointly and severally directed to refund the deposited amount of Rs.16,39,418/-, to the complainants, alongwith interest @9% per annum, from the respective dates of deposits, within 45 days, from the date of receipt of a certified copy of this order.
(ii) Opposite Parties No.1 to 3 and 5 are jointly and severally further directed to pay compensation, in the sum of Rs.1,00,000/- (one lac), for causing mental agony and physical harassment, to the complainants, within 45 days, from the date of receipt of a certified copy of this order.
(iii) Opposite Parties No.1 to 3 and 5 are further directed to pay cost of litigation, to the tune of Rs.10,000/-, to the complainants.
(iv) In case the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then Opposite Parties No.1 to 3 and 5 jointly and severally shall be liable to pay the amount mentioned in Clause (i) with interest @12 % P.A., instead of 9% P.A., from the respective dates of deposits, till realization, and interest @12 % P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.10,000/-.
25. However, the complaint against Opposite Party No.4 is dismissed with no order as to cost.
26. Certified Copies of this order be sent to the parties, free of charge.
27. The file be consigned to Record Room, after completion.
Pronounced. Sd/- 06/02/2015 [JUSTICE SHAM SUNDER [RETD.] PRESIDENT Sd/- [DEV RAJ] MEMBER Sd/- [PADMA PANDEY] MEMBER rb