State Consumer Disputes Redressal Commission
Palwinder Singh & Anr. vs M/S Premium Acres Infratech Pvt. Ltd, on 14 December, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION UT CHANDIGARH Complaint Case No. CC/188/2015 1. Palwinder Singh & anr. Chandigarh. ...........Complainant(s) Versus 1. M/s Premium Acres Infratech Pvt. Ltd, Chandigarh. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE Jasbir Singh PRESIDENT DEV RAJ MEMBER PADMA PANDEY MEMBER For the Complainant: For the Opp. Party: ORDER STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint : 188 of 2015 Date of Institution : 26.8.2015 Date of Decision : 14.12.2015 1] Palwinder Singh S/o Late Sh. Jasbir Singh, resident of A-507, Partap Nagar, G. T. Road, Amritsar presently residing at Flat No.B/13, Rishikunj Apartments, Yamuna Nagar, Lokhandwala, Andheri (West), Mumbai - 400058. 2] Manmeet Kaur W/o Sh. Palwinder Singh, resident of A-507, Partap Nagar, G.T. Road, Amritsar presently residing at Flat No.B/13, Rishikunj Apartments, Yamuna Nagar, Lokhandwala, Andheri (West), Mumbai - 400058. Address for correspondence for both the complainants: Palwinder Singh, Manager (Information Systems) 2nd Floor, Indian Oil Corporation Ltd. (MD), Indian Oil Bhavan, G-9, Ali Yavar Jung Marg, Bandra (East), Mumbai - 400051. ......Complainants. Versus 1] M/s Premium Acres Infratech Pvt. Ltd., SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh through its Managing Director. Second Address: M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali). 2] 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 through its authorized representative. 3] 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. 4] Pritpal Singh S/o Sh. Dalip Singh, R/o House No.1277, Sector 42-B, Chandigarh. ....Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:
Mrs. Vertika H. Singh, Advocate for the complainants.
Sh. Parminder Singh, Advocate for Opposite Parties No.1 to 3.
Sh. Munish Goel, Advocate for Opposite Party No.4.
PER DEV RAJ, MEMBER The facts, in brief, are that Villa No.98 measuring 2040 sq. ft. approximately was allotted to the complainants vide allotment letter dated 11.6.2010 (Annexure C-1) in the project "The Courtyard" launched by the Opposite Parties in Sector 110, Mohali. Buyer Agreement dated 21.12.2010 was executed between the parties (Annexure C-2). It was further stated that as per Clause 9 of the Buyer Agreement, possession of the said villa was to be handed over by Opposite Parties No.1 to 3 within a period of 24 months (18 months + 6 months grace period) from the date of its execution i.e. on or before 20.12.2012. It was further stated that the basic sale price of the villa, in question, was Rs.41,80,000/- and the aggregate sale price, as agreed in the Agreement was Rs.45,30,400/- including EDC. It was further stated that the total payment made by the complainants till date is Rs.36,68,384/- and the last payment of Rs.5,21,223/- was made on 16.12.2013 trough RTGS transfer. It was further stated that as per the Buyer Agreement, only Rs.8 Lacs was pending against the complainants against the principal amount. It was further stated that in the payment notice dated 29.12.2014 (Annexure C-9), the basic sale price, due to be paid, was wrongly shown as Rs.15,22,386/- plus Rs.47,014/- as service tax. It was further stated that despite the fact that the complainants had paid each and every installment as per the demand raised from time to time, Opposite Parties No.1 to 3 also raised demand of Rs.2,80,423/- on account of interest on delayed payments wrongly. It was further stated that, in fact, as per letter dated 12.11.2012 (Annexure C-10), Opposite Parties No.1 to 3 themselves admitted receipt of all the payments on time from the complainants. It was further stated that club membership fee of Rs.50,000/- was wrongly levied, when there is no such club existing till date. It was further stated that Rs.8,36,000/- levied on the complainants on account of restoration charges is totally wrong and arbitrary. It was further stated that inflation charges of Rs.2,96,928/-, Rs.2,265/- as maintenance charges and Rs.1,00,000/- as IFMS charges have also been wrongly levied despite the fact that there was immense amount of delay on the part of Opposite Parties No.1 to 3 in carrying out the construction work and no amenities or facilities in the area have been provided. It was further stated that when allotment of the complainants was never cancelled at any stage, restoration charges could not be levied. It was further stated that Opposite Parties No.1 to 3 could not charge service tax of Rs.32,848.88Ps on Rs.8,36,000/- i.e. the payment made prior to 1st July 2010 as per Govt. Notification dated 1.7.2010 (Annexure C-20). It was further stated that Opposite Parties No.1 to 3 wrongly levied Rs.1,57,586/- as delayed interest payment on the complainants out of which, they have shown Rs.44,842/- still pending.
2. It was further stated that the complainants came to know from news letter dated 30.06.2014 that two of their Directors, namely Sanjay Jain and Amit Jain have been terminated by the company. It was further stated that the complainants had time and again requested Opposite Parties No.1 to 3 to start the construction work but it seems that they had abandoned the construction work of the said villa and were just interested in extorting as much money as possible from the complainants. It was further stated that vide notification dated 6.5.2013 (Annexure C-15), Punjab Government had substantially reduced the EDC charges but Opposite Parties No.1 to 3 did not respond to the request made by the complainants to recalculate the EDC amount. It was further stated that Opposite Parties No.1 to 3 had a practice of imposing penalty of interest @18% on the amount due from the complainants and whenever agitated, they (Opposite Parties No.1 to 3) termed it to be a mere formality. It was further stated that as Opposite Parties No.1 to 3 never gave reasonable time to make payment, hence delayed interest charges were always levied on the complainants, which were illegal.
3. Feeling aggrieved, the complainants filed complaint case No.117 of 2015 before this Commission, wherein Opposite Parties No.1 to 3 filed reply and pleaded that a third party interest had been created in the said villa as they had re-allotted the same to Opposite Party No.4. It was further stated that just for getting higher market rate, Opposite Parties No.1 to 3 re-allotted the villa of the complainants to Opposite Party No.4 for Rs.68,50,400/- and Buyer Agreement dated 28.2.2015 (Annexure C-23) was executed between Opposite Parties No.1 to 3 and Opposite Party No.4. As per this Agreement, Opposite Parties No.1 to 3 had received Rs.24,80,000/- in cash from Opposite Party No.4. It was further stated that no demand notice, subsequent to demand raised on 29.12.2014, or before realloting the villa to Opposite Party No.4, was sent to the complainants. It was further stated that Opposite Parties No.1 to 3 constructed the Villa partially and usurped the entire money i.e. Rs.36,68,384/- paid by the complainants. It was further stated that it was only in their reply, that Opposite Parties No.1 to 3 contended that a cancellation letter dated 6.10.2014 was sent to the complainants whereby the allotment of the said villa was cancelled on account of not taking possession of the same. It was further stated that the said cancellation notice was sent at the old address of the complainants of New Delhi, whereas the complainants had already relocated to Mumbai and had intimated the same to Opposite Parties No.1 to 3 in May 2015 itself. It was further stated that the complainants requested Opposite Parties No.1 to 3, many a times vide various mails to change their communication address and one such mail is dated 26.07.2014 (Annexure C-14) and, as such, they (Opposite Parties No.1 to 3) could not deny of being not in the knowledge of the changed address of the complainants. It was further stated that demand notice dated 29.12.2014 was sent to the complainants at the correct address at Mumbai. It was further stated that, thus, Opposite Parties No.1 to 3 had the malafide intention, to first cancel the allotment of the complainants on false and vexatious ground and thereafter, re-allot the same to some other customer at higher market rates.
4. It was further stated that Opposite Parties No.1 to 3 never offered possession of the villa to the complainants and the sole ground taken in the cancellation letter dated 6.10.2014 (Annexure C-22) for cancellation was that the complainants failed to take possession despite being given due opportunity whereas neither was the possession ever offered nor the construction of the villa was complete. It was further stated that according to the account statement dated 5.10.2014, Opposite Parties No.1 to 3 mentioned that an amount of Rs.26,41,151/- was pending against the complainants instead of Rs.32,58,613/- as mentioned in demand notice dated 29.12.2014. It was further stated that the complainants have already paid the installments to be paid on start of brick work and internal plastering and on start of internal electrification and, therefore, 50% of EDC already stood paid. It was further stated that the only 50% EDC, which is pending, is to be paid alongwith installment of casting of second floor roof and on start of flooring, which amounts to total of Rs.1,75,200/-. It was further stated that the entire payment towards internal electrification including 25% of EDC stood paid and the payments against the installment on start of brick work had already been paid on 16.8.2013.
5. It was further stated that Opposite Parties No.1 to 3 alongwith Opposite Party No.4 falsely and deliberately cancelled the allotment of the villa of the complainants for no valid reason, and did so just to mint extra profit for the same. It was further stated that as per Annexure C-8, only a basic structure of villa is standing and rest of the construction work is pending. It was further stated that it is obvious that alongwith the price mentioned in the Buyer Agreement dated 28.2.2015, Opposite Party No.4 shall also pay charges for electricity, sewerage, water, IFMS, club and statutory charges/taxes, which would not be less than Rs.3,00,000/-. It was further stated that, thus, the total sale price of a fully constructed villa with similar specifications would not cost less than Rs.85 Lacs.
6. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service and indulgence 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, for declaring the cancellation notice dated 6.10.2014 (Annexure C-22) and the Buyer Agreement dated 28.2.2015 (Annexure C-23) as null and void; directing them (Opposite Parties) to give possession of Villa No.98 complete in all respect at the earliest or allot an alternate similarly located villa of same specifications to the complainants, construction whereof is complete in all respects and wherein all the basic amenities have already been provided, or in alternative, pay the market value of a fully constructed villa to the complainants; or refund the entire amount of Rs.36,68,384/- alongwith interest @24% per annum from the dates of respective deposits; declare demand notice dated 29.12.2014 (Annexure C-9) and account statement dated 5.10.2014 (Annexure C-24) as null and void; in case of allotment of Villa No.98 or alternative villa, pay delay charges @Rs.15,000/- per month since 20.12.2013 till actual date of handing over of possession; calculate revised EDC as per Govt. Notification dated 6.5.2013 & refund the excess EDC charges; in case of allotment, pay interest @18% per annum on Rs.36,68,384/- from the date of deposit till actual payment; pay Rs.5,00,000/- as compensation for mental harassment and suffering and Rs.50,000/- as cost of litigation.
7. Opposite Parties No.1 to 3 in their reply took up certain preliminary objections to the effect that this Commission lacks the territorial jurisdiction on the ground that as per Clause 36 of the Agreement, the Courts situated at Delhi shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement and that the present complaint involved forgery of documents, which cannot be decided summarily and can only be dealt with by the Civil Court.
8. On merits, it was stated that allotment letter (Ann. C-1) is dated 11.6.2010 but allotment date is 22.5.2010 as per Annexures R-2 & R-10. It was further stated that as per Clause 9 of the Buyer Agreement (Ann. C-2), the time period for giving possession was subject to force majeure conditions and, thus, Opposite Parties No.1 to 3 could not be held liable for any kind of delay whatsoever. It was further stated that the construction work suffered little bit delay on account of fraud committed by the employees of Opposite Parties No.1 to 3, as per Annexures R-4 & R-5 and various orders passed from time to time by the Hon'ble High Court. It was admitted that the basic sale price of the villa, in question, was Rs.41,80,000/- and by including EDC, the total cost came to be Rs.45,30,400/-. It was also admitted that the complainants paid total amount of Rs.36,68,384/- to Opposite Parties No.1 to 3. It was also admitted that last payment to the tune of Rs.5,21,223/- was made on 16.12.2013. It was denied that the same was on account of electrification and internal plumbing as alleged. Issuance of Annexures C-3 & C-4 was denied by Opposite Parties No.1 to 3. Receipt of emails (Ann. C-6) was also denied by the answering Opposite Parties. It was also denied that Complainant No.2 visited the site in the mid of January 2014 and found no construction. It was further stated that the construction was never stopped and as per payment schedule, the construction was in progress. Annexure C-8 was denied as the same was issued by alleged Architect, who did not file the affidavit alongwith the report. It was further stated that at the time of survey, the answering Opposite Parties were not issued notice and it was not clear that which part of the building was visited by the Architect.
9. It was further stated that Annexure C-9 dated 29.12.2014 was issued after giving cancellation notice dated 6.10.2014 (Annexure R-7), for making payment but the complainants neither replied to cancellation notice nor to letter dated 29.12.2014, failing which, the villa, in question, was sold to new customer (Annexure R-8). It was admitted that as per Buyer Agreement (Annexure C-2), Rs.8 lacs was pending but notice (Annexure C-9) states that Rs.15,22,386/- was due because it carried interest and similar was demand of Rs.47,014/- as service tax on the basic sale price, which was pending. It was further stated that club membership fee, electrification charges, water charges, sewerage charges, IFMS and inflation charges were perfectly in consonance with the allotment letter and Buyer Agreement. It was further stated that restoration charges of Rs.8,36,000/- were on account of cancellation of villa done vide Annexure R-7, which the complainants did not challenge in the earlier complaint filed by them. It was further stated that inflation charges of Rs.2,96,928/- were as per whole sale price index (Annexure R-3). It was further stated that fraud was committed by the employees of the Opposite Parties, for which FIR (Annexure R-4) was lodged. It was further submitted that the answering Opposite Parties have no knowledge that the complainants were transferred from Delhi to Mumbai till January 2015, when change of address was confirmed. It was further stated that the complainants defaulted in making timely payments. It was further stated that the change in EDC charges was to be calculated after taking the clearances and if there was any plus or minus, the amount would be adjusted or refunded to the complainants. It was further stated that the answering Opposite Parties charged only legal and permitted interest on delayed payment @18% per annum and the entire calculations done were correct. It was further stated that service tax was calculated as per Govt. notification dated 1.7.2010, which was perfectly correct and legal. It was denied that the complainants did not receive the cancellation letter, which was sent on their last known address through registered post (Annexures C-21 & C-22). 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 unfair trade practice. The remaining averments, were denied, being wrong.
10. Opposite Party No.4 in his written statement stated that the complaint is not maintainable against him because he had purchased the villa in the Court Yard project of Opposite Parties No.1 to 3 and Villa No.98, in question, after entering into an agreement dated 28.02.2015(Annexure C-23) and a total amount of Rs.24,80,000/- stood paid. It was further stated that the complainants have no privity of contract with Opposite Party No.4 as whatever remedy they have, that remedy is only available against Opposite Parties No.1 to 3. The allegation of connivance of Opposite Party No.4 with Opposite Parties No.1 to 3 has been specifically denied. It was further stated that Opposite Party No.4 wanted to have property near the tricity and on finding the property, which suited him, purchased this property after entering into a proper Buyer Agreement. It was further stated that Opposite Party No.4 does not even know the complainants and he is a bonafide purchaser of the property with his own rights. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.4, nor he indulged into unfair trade practice. The remaining averments, were denied, being wrong.
11. The complainants, in support of their case, submitted their joint affidavit, by way of evidence, alongwith which, a number of documents were attached.
12. Opposite Parties No.1 to 3, in support of their case, submitted the affidavit of Sh. Ranjit Singh, their General Manager (Legal & Administration), by way of evidence, alongwith which, a number of documents were attached.
13. Opposite Party No.4 - Sh. Pritpal Singh, in support of his case, submitted his own affidavit, alongwith which, a number of documents were attached.
14. The complainants filed replication wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of Opposite Parties No.1 to 3.
15. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
16. It is evident on record that the complainants applied for a villa in the project of Opposite Parties No.1 to 3 and they were allotted a Villa bearing No.98 (Model Copper) (Delux), admeasuring 192 Sq. Yard (2040 sq. feet built-up area) in Sector 110 in the project, namely, 'The Courtyard'. In the allotment letter, Opposite Parties No.1 to 3 confirmed receipt of Rs.8,36,000/- from the complainants. As per the allotment letter, the composite sale price of the villa, in question, was Rs.45,30,400.00. Buyer Agreement dated 21.12.2010 (Annexure C-2) was executed between the parties at Chandigarh. The complainants opted for Construction Linked Installment Payment Plan wherein the total sale consideration of the villa, in question, was also stated as Rs.45,30,400/-, which included Basic Sale Price (BSP) of Rs.41,80,00/- and Rs.3,50,400/- as EDC. As per Clause 4(a) of the Buyer Agreement, the complainants had already paid a sum of Rs.12,54,000/- to Opposite Parties No.1 to 3. Further as per Clause 9 of the Buyer Agreement, possession of the said villa was to be delivered within a period of 24 months i.e. (18 months + 6 months grace period) from the date of the said Agreement, which meant that possession was to be delivered by 21.12.2012. Vide letter dated 12.11.2012 (Annexure C-10), Opposite Parties No.1 to 3 informed complainant No.1 that all payments were received timely till that date. The case of the complainants is that they made payment of various installments as per payment plan and in all, a sum of Rs.36,68,384/- was paid by them. Complainant No.1 vide email dated 23.4.2013 addressed to Opposite Parties No.1 to 3 pointed out that construction of his Unit No.98 had not started. He also sent emails from time to time to know status of construction.
17. The complainants have specifically averred that consequent upon transfer of complainant No.1 to Mumbai, he duly intimated change in his address to Opposite Parties No.1 to 3 vide emails dated 5.5.2014, 4.6.2014 and 30.7.2014. It was further specifically averred that possession of the villa, in question, was never offered and cancellation of the villa allotted to the complainants vide letter dated 6.10.2014 (Annexure R-7/ Annexure C-22) by Opposite Parties No.1 to 3, (which was not received by the complainants, the same having been sent at old address of the complainants), was illegal. As is evident from email dated 7.10.2014 (Page 84), Complainant No.1 requested Opposite Parties No.1 to 3 to apprise him the status of construction of his Unit No.98 but there was no response. Thus, Opposite Parties No.1 to 3 instead of apprising factual status of construction and offering possession to the complainants, cancelled the allotment on flimsy grounds and there was no justification in doing so. It was also argued that villa was allotted to Opposite Party No.4 at a higher price and the allotment was cancelled to earn profits.
18. The first question, which falls for consideration, is, as to whether existence of Clause 36 in the Buyer Agreement (Annexure C-2), bars the territorial jurisdiction of this Commission, to entertain and try 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.
19. No doubt, the Counsel for Opposite Parties No.1 to 3 submitted that since the parties as per Clause 36 of the Buyer Agreement (Annexure C-2), agreed that the Courts at Delhi alone, would have jurisdiction, for adjudication of all matters arising out or in connection with the same (Agreement), this Commission has got no territorial jurisdiction, to entertain and decide the complaint. The submission of the Counsel, in this regard, being devoid of merit, is liable to be rejected, for the reasons to be recorded hereinafter. Since cause of action arose at Chandigarh, no help can be drawn, from this Clause, for coming to the conclusion that this Commission at Chandigarh, has no territorial jurisdiction, to entertain and decide the instant complaint. In Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., I (2008) CPJ 404 (NC), it was held by the National Commission, that there is a difference between Section 11 of the Act, which is a para material to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. It was also held by the National Commission that ".....the provisions of Sub-section (2) of Section 11 could not be abridged by any agreement and if such an interpretation is put, then the purpose of beneficial provisions of the Consumer Protection Act might be set at naught to a great extent for it would be difficult and cumbersome for a consumer to go to the distant place to contest the matter and to suffer more expenditure than what he would get....." In the instant case, the Buyer Agreement (Annexure C-2) was executed between the complainants and Opposite Parties No.1 to 3 on 21.12.2010 at Chandigarh. As such, a part of cause of action, accrued to the complainants, at Chandigarh. Accordingly, this Commission at Chandigarh, in view of the provisions of Section 17 of the Act, has territorial jurisdiction to entertain and decide the complaint. The submission of Counsel for Opposite Parties No.1 to 3, in this regard, therefore, being devoid of merit, fail and the same stands rejected.
20. 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 Opposite Parties No.1 to 3, against its Director and the complainants. Bare perusal of the allotment letter dated 11.06.2010 (Annexure C-1) reveals that the same bears the signatures of Sh. Amit Jain, as authorized signatory of Opposite Parties No.1 to 3. When Opposite Parties No.1 to 3 admitted issuance of allotment letter, they (Opposite Parties) cannot resile from the contents of the same as also that of Buyer Agreement (Annexure C-2). It is not the case of Opposite Parties No.1 to 3 that they did not receive the amount deposited by the complainants. If the person who was authorized to sign the allotment letter committed some fraud with Opposite Parties No.1 to 3, the liability for the same cannot be fastened upon the complainants. Opposite Parties No.1 to 3 can proceed against him, as per the provisions of law but the rights of the complainants, being third parties, due to the acts of Directors 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, being devoid of merit also stands rejected.
21. The next question, which falls for consideration, is, as to whether possession of the villa, in question, was ever offered by Opposite Parties No.1 to 3 to the complainants or not? Clause 9 of the Buyer Agreement executed on 21.12.2010 (Annexure C-2), being relevant is extracted hereunder:-
"9. That the possession of the said premises is likely to be delivered by the company to the Villa alottee within a period of 24 months (18 months plus 6 months grace) from the date of this agreement subject to force majeure circumstances, & on receipt of all payments punctually as per agreed terms and on receipt of complete payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him. The Company on completion of the construction shall issue final call notice to the Villa Allottee who shall within 30 days thereof, remit all dues and take possession of the Villa. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company. The Allottee would be liable to pay holding charges @5/- per sq. ft. per month if he fails to take possession within 30 days from the date of offer of possession. That if the construction is delayed due to normal course, other than conditions set out in point 10, then the company shall pay Rs.15,000/- per month as delay charges for the period of delay."
22. The Buyer Agreement was executed on 21.12.2010 and computing 24 months period (including grace period), Opposite Parties No.1 to 3 were required to handover possession by 21.12.2012.
23. It is clearly evident from record that the complainants duly informed Opposite Parties No.1 to 3 about change in their address vide emails dated 5.5.2014, 4.6.2014 and 30.7.2014, contents whereof read as under:-
Email dated 5.5.2014.
"With my transfer, I have relocated to Mumbai. You are requested to change my communication address to following for all future communications:
Palwinder Singh, Manager (Information Systems), 2nd Floor, Indian Oil Corporation Ltd. (MD), Indian Oil Bhavan, G-9, Ali Yavar Jung Marg, Bandra (East), Mumbai-400051.
This is for Villa No.98, TDI Courtyard, Sec-110, Mohali.
A line in conformation shall be appreciated."
Email dated 4.6.2014.
"Refer trailing mail on the subject, hope the needful changes in communication address has been made. A line in confirmation shall be appreciated.
Also kindly update on the construction status of Villa No.98 (Copper Villa)."
Email dated 30.7.2014.
"Reference previous telecom on the subject, pleas find enclosed a letter from employer stating both my residential address and office address at Mumbai. Requested to change my communication address to the followi8ng which is my current office address:
PALWINDER SINGH, MANAGER (INFORMATION SYSTEMS), 2ND FLOOR, INDIAN OIL CORPORATION LTD. (MD), INDIAN OIL BHAVAN, G-9, ALI YAVAR JUNG MARG, BANDRA (EAST), MUMBAI-400051.
THIS IS FOR VILLA NO.98, TDI COURTYARD, SEC-110, MOHALI.
A line in conformation shall be appreciated."
Complainant No.1 also enclosed a certificate from his employer alongwith email dated 30.7.2014. Opposite Parties No.1 to 3 have wrongly stated that they did not receive email dated 30.07.2014 from the complainants. It is confirmed from Annexure C-27 colly. that emails sent by the complainants regarding change in address were transmitted to Opposite Parties No.1 to 3 (Pages 180-B to 180-D). The letter dated 6.10.2014 (Annexure C-22) cancelling allotment is addressed to complainant No.1 at his Delhi address despite the fact that he duly informed Opposite Parties No.1 to 3 about change in his address. Para No.3 of the aforesaid letter dated 6.10.2014 is extracted hereunder:-
"3. That you were given due opportunity to take the possession of Villa/Unit No.98, but you failed to do so and my client has to bear the charges on account of inflation and the property being ready and not been taken by you for reasons best known to you. My client has to further maintain the said unit/villa and has to spend money for the same for which you are liable. You were previously also asked by the company many times to come and take the possession after clearing the requisite maintenance dues and other formalities, but you failed to comply with the same."
24. Opposite Parties No.1 to 3 have miserably failed to bring, on record, any cogent evidence/communication, by which possession was offered to the complainants. Thus, an adverse inference has to be drawn against them that possession was never offered to the complainants and on the basis of a patently wrong and incorrect averment that possession was offered but the complainnts failed to do so, allotment was cancelled arbitrarily without any justified reasons. Not only this, the communication was sent at the old address of the complainants. Thus, it is proved beyond doubt that possession was never offered to the complainants and when possession was not offered, there was no question of cancelling allotment of the villa, in question, on the ground that the complainants did not come forward to take possession of the said villa. Further no cogent evidence that construction of villa, in question, was complete, has been produced by Opposite Parties No.1 to 3. This clearly meant that Opposite Parties No.1 to 3 indulged into unfair trade practice and were also deficient in rendering service.
25. The complainants have filed this complaint for possession or in alternative, for refund of the amount paid by them alongwith interest. Undisputedly, villa, in question, has been allotted to Opposite Party No.4 at a price of Rs.68,50,400/- as against the price of Rs.45,30,400.00 on which the same was allotted to the complainants. A perusal of Buyer Agreement dated 28.2.2015 (Annexure C-23) executed between Opposite Parties No.1 to 3 and Opposite Party No.4 reveals that possession of the villa, in question, would be offered to Opposite Party No.4 within a period of two years, which clearly shows that villa, in question, is still not complete and fit for possession. This itself proves that Opposite Parties No.1 to 3 have wrongly stated that possession was offered to the complainants. The complainants have been put to great loss by realloting the villa, in question, to Opposite Party No.4 and they (complainants) have lost the opportunity of owning a villa for residential purposes. Thus, the contention of Opposite Parties No.1 to 3 that the complainants defaulted in making few payments as a result whereof, their allotment was cancelled, when as discussed in the preceding paras that communication was sent to the complainants at their old Delhi address despite the fact, they had already informed Opposite Parties No.1 to 3 of their new Mumbai address vide emails dated 5.5.2014, 4.6.2014 and 30.7.2014, is totally wrong and devoid of any substance and is thus, rejected.
26. The next question, which falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for non-delivery of physical possession of the villa, in question by Opposite Parties No.1 to 3 and re-alloting the same in favour of Opposite Party No.4. By not offering physical possession of the villa, in question, complete in all respects and by re-alloting the same to Opposite Party No.4, the complainants definitely underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of Opposite Parties No.1 to 3. In this view of the matter, the complainants, in our considered opinion, are entitled to compensation, for deficiency in service, adoption of unfair trade practice, mental agony and physical harassment caused to them, at the hands of Opposite Parties No.1 to 3, to the tune of Rs.3,00,000/- which could be said to be adequate and reasonable.
27. For the reasons recorded above, the complaint is partly accepted, with costs, against Opposite Parties No.1 to 3. Opposite Parties No.1 to 3 are jointly and severally held liable and directed as under:-
(i) To refund the amount of Rs.36,68,384/-, to the complainants, alongwith interest @15% per annum, from the respective dates of deposits, within two months, from the date of receipt of a certified copy of this order.
(ii) To pay compensation, in the sum of Rs.3,00,000/- (Rupees Three Lacs only) for deficiency in service, adoption of unfair trade practice and for causing mental agony and physical harassment, to the complainants, within two months, from the date of receipt of a certified copy of this order.
(iii) To pay cost of litigation, to the tune of Rs.50,000/- 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 shall be liable to pay the amount mentioned in Clause (i) with interest @18% per annum, instead of 15% per annum, from the respective dates of deposits, till realization, and interest @15% per annum, 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.50,000/-.
28. However, the complaint against Opposite Party No.4 is dismissed with no order as to costs.
29. Certified Copies of this order be sent to the parties, free of charge.
30. The file be consigned to Record Room, after completion.
Pronounced.
December 14, 2015.
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT [DEV RAJ] MEMBER [PADMA PANDEY] MEMBER [HON'BLE MR. JUSTICE Jasbir Singh] PRESIDENT [ DEV RAJ] MEMBER [ PADMA PANDEY] MEMBER