State Consumer Disputes Redressal Commission
Ravinder Kumar Bajaj vs Parasvnath Developers on 5 May, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 145 of 2016 Date of Institution : 18.04.2016 Date of Decision : 05.05.2017 Ravinder Kumar Bajaj son of Sh.Jiwan Ram Bajaj, resident of Flat no.001, Tower No.6, Orchard Country, Sector 115, Kharar-Landran Road, Mohali. ......Complainant V e r s u s Parsvnath Developers Pvt. Ltd., Corporate Office at 6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001, through its Managing Director. Parsvnath Developers Pvt. Ltd., SCO No.1, 1st Floor, Sector 26, Chandigarh, through its Authorized Signatory. Now shifted at:- Parsvnath Developers Pvt. Ltd., Parsvnath Royale, Back Side GH-105, Sector 20, Panchkula, Haryana 134109, through its Authorized Signatory. Parsvnath Developers Pvt. Ltd., King Citi Township, Rajpura, Ambala Road, Near Shambu Barrier, Rajpura Distt. Patiala, Punjab, PIN 140401, through its Authorized Signatory. State Bank of India, Civil Lines Branch, Ludhiana, Punjab, through its Branch Manager. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER Argued by: Sh.Ravinder Pal Singh, Advocate for the complainant.
Sh. Aftab Singh Khara, Advocate for Opposite Parties No.1 to 3.
Sh.J.K. Babbar, Advocate for opposite party no.4.
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT The facts, in brief are that the complainant was going to retire from State Bank of India, on 31.10.2011. He was living in a rented accommodation. To settle himself in life, he opted to purchase a flat, by moving an application, in a project of opposite parties no.1 to 3, launched by them, under the name and style 'Castle', situated in Parsvnath King Citi, Rajpura, Punjab. Total price of the flat, measuring 1580 square feet was fixed at Rs.17,71,575/- including external development charges, club charges etc. Additionally, an amount of Rs.50,000/- was to be paid for one open car parking space. With his application, the complainant paid an amount of Rs.75,000/-, as booking amount. The complainant was allotted flat bearing no.201, Tower No.8, in the said project. However, subsequent thereto, the numbers of towers were shuffled and accordingly, he was allotted flat, in Tower No.9, in the said project. Flat Buyer's Agreement (in short the Agreement) was executed between the parties on 31.08.2007. As per Clause 10(a) of the Agreement, possession of the unit was agreed to be handed over within a period of 36 months of the commencement of construction with grace period of six months, subject to force majeure conditions. As per Clause 10 (c) it was undertaken by opposite parties no.1 to 3 to compensate the complainant, in case of delay in handing over possession of the unit, by making payment of Rs.53.80Ps. per square meter or Rs.5/- per square feet, per month, of the super area of the unit. Payment plan opted was constructed linked.
Thereafter, as per demands raised, the complainant, in all, deposited an amount of Rs.13,03,780/- vide receipts, copies whereof are available at pages 67 onwards of the paper book. It is necessary to mention here that to make payment towards price of the said flat, the complainant raised loan to the tune of Rs.9 lacs, for which tripartite agreement was signed between him, opposite parties no.1 to 3 and opposite party no.4, on 05.09.2007. It is also on record that to repay the loan, the complainant had been paying equated monthly installments to opposite party no.4. It is further case of the complainant that development at the site was very slow. Completion of construction, within the stipulated period, was not in sight. At one point of time, construction was completely stopped. The complainant approached opposite parties no.1 to 3, many a times, to know the date of delivery of possession of the constructed unit, however, he was put off, on one pretext or the other. The complainant was living in a rented accommodation. To make his life comfortable, he had to purchase one another residential flat in Sector 115, Mohali and to purchase that flat also, he raised loan amount to the extent of Rs.16 lacs. As on today, the poor consumer is paying EMIs to repay above-said two loans.
At the time of arguments, it was brought to the notice of this Commission that possession of the flat purchased in Mohali, in some other project, has been taken over by the complainant and he is residing therein.
Thinking that delivery of possession of the unit, in dispute, is not in sight, the complainant sent legal notice to opposite parties no.1 to 3 on 18.12.2014 Annexure C-7, to handover possession but despite that nothing was done. Under above circumstances, the complainant has filed this complaint, seeking refund of amount paid by him with interest; Rs.2,37,231/- paid as interest, on the amount raised for loan; compensation for the period of delay in handing over possession, as per Clause 10 (c) of the Agreement; compensation for mental agony and physical harassment; litigation expenses etc. Upon notice, opposite parties no.1 to 3, filed their joint written version, raising many preliminary objections like the complainant being investor, did not fall within the definition of "consumer" as defined under Section 2(1)(d) of the Act, as such, he purchased the flat, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. Pecuniary and Territorial jurisdiction of this Commission was also challenged. It was pleaded that the complaint was barred by limitation. It was further stated that since the complainant is seeking refund of the amount deposited, as such, only the remedy available to him is the Civil Court i.e. civil suit for recovery and the present complaint has been filed by him, only with a view to escape from Court fees. It was further pleaded that complicated questions of facts and law are involved in the present case, which cannot be decided by this Commission, proceedings before which are summary in nature. In other words, it is said that only the civil court has jurisdiction to entertain and decide the present dispute.
Sale of unit to the complainant against price mentioned was admitted. It was also admitted that for payment 'construction linked payment plan' was opted by the complainant. Relocation to the complainant, to another Tower, referred to above, was also admitted. Payments made by the complainant are not disputed. Raising of loan through tripartite agreement is also affirmed. It was stated that from time to time, opposite parties no.1 to 3 had been intimating the complainant qua progress of construction work, at the spot. It was averred that opposite parties no.1 to 3 being customer oriented organization have credited an amount of Rs.3,79,200/- in the account of the complainant towards delayed compensation, for the period from July 2011 to July 2015. It was further stated that after sanction of revised layout plan, construction was started at the site on 28.03.2008, so far as Tower no.9 is concerned, wherein the unit, in question, is located. It was further stated that construction work at the site was in progress and delay was caused due to global meltdown, which was beyond control of opposite parties no.1 to 3. It was averred that on account of global meltdown, opposite parties no.1 to 3 faced financial crunch. It was further stated that besides as above, delay also occurred, as the complainant and other buyers stopped making timely payments. It was stated that the said reasons were beyond the control of opposite parties no.1 to 3, to complete the construction in time. It was denied that construction at the site was stopped, as alleged. Construction qua tower nos.7 and 8 stood completed and possession stood delivered to the allottees in those towers. It was denied that the complainant is entitled to interest as alleged. It was further stated that in case of delay in delivery of possession of the unit, stipulated penalty has been provided in the Agreement, which safeguarded the interest of the complainant. It was stated that time was not the essence of contract. No specific period was mentioned in the Agreement, to deliver possession of the flat, as it was mentioned that opposite parties no.1 to 3 are likely to deliver possession of the flat, within 36 months from the date of start of construction. It was stated that construction of the tower, in which the unit, in question, is located, is near completion; opposite parties no.1 to 3 are making best efforts to complete the same and possession is expected to be offered very soon. It was further stated that neither there was any deficiency in providing service, on the part of opposite parties no.1 to 3, nor they indulged into unfair trade practice.
Opposite party no.4, in its written statement pleaded that it has no concern with 'interse dispute' between the complainant and opposite parties no.1 to 3. It was admitted that the complainant had been making payment of EMIs towards loan raised. It was stated that since no relief has been claimed by the complainant against opposite party no.4, as such, complaint qua it be dismissed with no order as to costs.
In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those contained in written version of opposite parties no.1 to 3.
The parties led evidence in support of their case.
We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully.
Before going into the merits of the case, it is necessary to mention here that earlier this complaint was filed before this Commission. However, feeling that this Commission has no territorial jurisdiction to entertain the same, it was dismissed in limine, vide order dated 21.04.2016. Feeling aggrieved, the complainant went in appeal bearing No.515 of 2016, which was allowed by the National Commission, vide order dated 23.08.2016, by observing as under:-
" Since in the Grounds of Appeal, a specific averment is made by the Appellant to the effect that in the year 2007, when the subject flat was booked, the Respondent Company did have a Branch office at Chandigarh, where the payments in respect of the project used to be received regularly, on a pointed query, learned Counsel appearing for the Company very fairly states, on instructions, that the stand of the Appellant is correct.
In light of the statement by learned Counsel for the Respondent Company, I am of the view that in the present case, the State Commission UT, Chandigarh has the Territorial Jurisdiction to adjudicate upon the Complaint filed by the Appellant."
Taking note of statement made by Counsel for opposite parties no.1 to 3, it was stated that the Company had its Branch office at Chandigarh, where some payments were received regularly from the customer, qua the project, in question, the matter was remitted back to this Commission, to hear the complaint, on merits.
In view of order passed by the National Commission, this complaint was taken up for hearing on 03.10.2016. Taking note of ratio of the judgment rendered by the National Commission in appeal bearing No.515 of 2016, objection raised by opposite parties no.1 to 3, to the effect that this Commission lacks territorial jurisdiction to entertain and decide this complaint, stands rejected.
It was stated by Counsel for opposite parties no.1 to 3 that the complainant being investor, had purchased the unit, in dispute, for selling the same, to earn profits and not for personal use, and therefore, he would not fall within the definition of consumer, as defined under the Act. In the present case, it has specifically been stated by the complainant that he was going to retire on 31.10.2011. He was residing in a rented accommodation. With a view to settle in his own house, he has purchased the unit, in question. Application for purchase of the said unit, in the present case was moved in the year 2007. The complainant opted for construction linked payment plan and continued to make payments. In the meantime, he had retired from the service. Delivery of possession of the unit was not in sight. Compelled under the circumstances, he purchased another flat at Mohali, where he is residing at present. He cannot be asked to wait for entirety.
At the same time, there is nothing on record, that the complainant is a property dealer, and deals in the sale and purchase of property, on regular basis, in the open market and, as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Since, opposite parties no.1 to 3 have leveled allegations against the complainant, as such, the onus lays upon them (opposite parties no.1 to 3), to prove it, which they failed to do so. Thus, in the absence of any cogent evidence, in support of the objections raised by opposite parties no.1 to 3, mere bald assertion i.e. simply saying that the complainant being investor, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only as above, 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 a similar plea taken by the builder, while holding as under:-
"In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house."
The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no.1 to 3, in their written reply, therefore, being devoid of merit, is rejected.
Now we will like to deal with an objection raised by the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.
It may be stated here, that the complainant has sought refund of amount paid i.e. Rs.13,03,780/- alongwith interest @24% p.a. from the respective date of deposits; compensation for the period of delay in handing over possession from 01.03.2011 till 01.03.2016 to the tune of Rs.4,74,000/-; Rs.2,37,231/- i.e. the amount of interest paid to the State Bank of India against loan raised; Rs.10 lacs, as compensation for mental agony, physical harassment and deficiency in providing service; and Rs.2 lacs, as cost of litigation, aggregate value whereof fell above Rs.20 lacs but below Rs.1 crore. In no way, the aggregate value of the relief claimed, exceeds Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection taken by opposite parties no.1 to 3, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
On perusal of the available record, we are of the considered opinion that opposite parties no.1 to 3 were guilty of providing deficient service to the complainant. It is not in dispute that the unit, in question, was booked by the complainant, by moving an application in June 2007. Buyer's Agreement was executed between the parties on 31.08.2007. As per demands raised, he paid huge amount of Rs.13,03,780/-. Opposite parties no.1 to 3 committed to handover possession of the constructed unit within a period of 36 months, from the date of start of construction plus six months' grace period. Relevant Clause 10 (a) reads thus:-
"Construction of the Flat is likely to be completed within a period of thirty six (36) months, extendable by six (06) months from the date of commencement of construction on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Deptt., Civil Aviation Deptt., Traffic Deptt. Pollution Control Deptt., as may be required for commencing and carrying on construction. The construction period shall be subject to force majeure, restraints or restrictions from any courts/authorities, non-availability of building materials, disputes with contractors/work force etc. and circumstances beyond the control of the Developer and subject to timely payments by the Flat Buyers. No claim by way of damages/compensation shall lie against the Developer in case of delay in handing over possession on account of any of such reasons and the period of construction shall be deemed to be correspondingly extended. The date of submitting application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the Tower/Complex shall be treated as the date of completion of the Flat for the purpose of this clause/agreement."
It is also proved on record that after execution of the above said Agreement, the complainant opted for construction liked payment plan, to make timely payment. He also raised loan, by signing tripartite agreement on 05.09.2007. As per demands raised, payments were made. By the end of 28.02.2011, he had already paid an amount of Rs.13,03,780/- against basic sale price of the unit, which was fixed at Rs.17,71,575/-. There is nothing on record to show that thereafter, any demand was sent for payment, which was not complied with by the complainant. As per admitted stand of the opposite parties no.1 to 3, construction, after approval, started on 28.03.2008. Possession of the unit was to be delivered on or before 27.09.2011. Construction was not complete. Offer of possession of the unit was not made to the complainant. At the time of arguments, no firm date was given, as to when possession is likely to be delivered to the complainant. It appears that delivery of possession is not in sight, even in near future. Position of the project can easily be depicted from the photographs placed on record by the complainant. Under above circumstances, it can safely be said that by making false promise and not delivering possession of a unit, which was booked as far as back in the year 2007, opposite parties no.1 to 3 are guilty of rendering deficient service.
Counsel for opposite parties no.1 to 3 made an attempt to wriggle out of the situation by stating that construction could not be completed on account of global meltdown. It is very significant to mention here that once, opposite parties no.1 to 3 have already received about 75% of the sale consideration, towards the unit(s), from the complainant and also might have received from other allottee(s), then it does not lie in their mouth, that they faced extreme financial hardship, due to global meltdown in the market, as far as the project, in question, is concerned. It is not that opposite parties no.1 to 3 were, in the first instance, required to develop the project, by arranging funds out of their own sources, and, thereafter, the units were to be sold to the allottees, on future payment basis. Had this been the case of opposite parties no.1 to 3, only in those circumstances, the plea with regard to facing extreme financial hardship on account of global meltdown would have been considered to be correct, by this Commission.
Even otherwise, the said difficulty/ground i.e. recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the construction and development work at the site. A change in economic or market circumstances affecting the profitability of a contract or the circumstance, is not regarded as a force majeure condition. Neither any new legislation was enacted nor an existing rule, regulation or order was amended, stopping suspending or delaying the construction/development work of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God, which could have delayed the completion of construction/development work in the project, within the time stipulated in the Agreement. A similar question fell for determination before the Hon`ble National Consumer Disputes Redressal Commission, New Delhi, in a case titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints), 2015 (4) CPR 34. The National Commission, in that case, while rejecting the plea of the builder, held as under:-
"Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.
Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainant. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression 'slow down' would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word 'slow down' having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project."
The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. Opposite parties no.1 to 3, therefore, cannot take shelter under the garb of force majeure Clause of the Agreement, for extension of period, for delivery of possession of the unit. In these circumstances, it is also held that time was essence of the contract, to which, opposite parties no.1 to 3 failed to abide and are now taking bald stand to evade their liability. By making a misleading statement, that possession of the unit, in question, would be delivered within a period of 36 months, from the date of start of construction with grace period of six months but on the other hand, by not abiding by the commitments made and at the same time, taking a bald stand that time was not essence of the contract, opposite parties no.1 to 3 were not only deficient in providing service but also indulged into unfair trade practice.
At the time of arguments, a plea was also raised by Counsel for opposite parties no.1 to 3 that some delay also occurred because the complainant including other allottees stopped making payment, after they had paid the amount in question. It has been proved on record, and as has been discussed in preceding part of this order, that opposite parties no.1 to 3 failed to complete construction by the stipulated date. On the other hand, when the complainant saw that despite making substantial payment of more than about 75% of the sale consideration, opposite parties no.1 to 3 are not serious in completing the construction, as such, he was well within his right, to withhold the remaining payment, in view of principle of law laid down in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser.
Even otherwise, such a plea taken by the opposite parties no.1 to 3, has no legs to stand, in view of decision rendered by the National Commission, in a case titled as Puneet Malhotra Vs Parsvnath Developers Ltd., Consumer Complaint No. 232 of 2014, Decided on 29.01.2015, wherein under similar circumstances, it was observed and held as under:-
"If some of the allottees had not made timely payment, it was for the opposite party to arrange the requisite finance either by taking loan or from its own resources or by liquidating Inventory at a lower price".
An objection was also raised by opposite parties no.1 to 3 that the consumer complaint is not maintainable, and only a Civil Court can decide the case, as the complainant was required to file a recovery suit. It may be stated here that the complainant hired the services of opposite parties no.1 to 3 for purchasing the unit, in question, and he was allotted the same for consideration. It was not that the complainant purchased the unit, in an open auction, on "as is where is basis". According to clause 10 (a) of the Agreement, opposite parties no.1 to 3 were required to hand over possession of the unit, in question, to the complainant, within a maximum period of 42 months (36 months plus 6 months grace period) from the date of start of construction, after completing all the basic amenities i.e. on or before 27.09.2011, referred to above. However, by not doing so, opposite parties no.1 to 3 breached the terms and conditions of the Agreement, which is a deficiency in providing service and also indulgence into unfair trade practice, on their part, for which, the complainant has rightly filed the consumer complaint, under the Act. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, in the Civil Court, for recovery suit, the alternative remedy provided under Section 3 of the Act, can also be availed of by him, as he falls within the definition of consumer.
The plea taken by opposite parties no.1 to 3 is also bereft of merit, in view of latest judgment passed by the National Commission, titled as M/s. Karwa Developers & 3 Ors. Vs. Shree Vinayak Co-Operative Housing Society Ltd. & 3 Ors., First Appeal No. 980 of 2016, decided on 3rd March, 2017, wherein, a similar plea of the builder was negated, while holding as under:-
" We also do not find any substance in the plea taken by the appellant that under clause 14(a) of the development agreement, the complainant was required to file a civil suit under the Specific Relief Act only, because they were asking for monetary relief. The State Commission rightly stated that the relief sought in the complaint were on account of deficiencies committed by the OP Developers, vis-à-vis, the society. Since there is a specific clause in the agreement for giving the possession of the flat within specific time frame and penalty has been provided if the developers failed to develop the same, the society was well within its rights to file consumer complaint against the OP builder."
In this view of the matter, the objection raised by Counsel for opposite parties no.1 to 3, being devoid of merit, must fail, and the same stands rejected.
At the same time, it is also held that no complicated question of facts and law are involved in this case. It is a simple case of non delivery of possession of the unit purchased by the complainant, in the project of opposite parties no.1 to 3. There is ample evidence on record, which proves that opposite parties no.1 to 3 were deficient in providing service and also adopted unfair trade practice, as held above. This Commission is, therefore, competent to adjudicate the present complaint. Plea taken by opposite parties no.1 to 3, in this regard, as such, stands rejected.
The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.13,03,780/- and if yes, whether with interest or not. It is an admitted fact that opposite parties no.1 to 3 are unable to offer and deliver possession of the unit, in question, which was booked as far as back in 2007 and still firm date of delivery of possession of the unit, could not be given to him (complainant). The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit purchased by him. Opposite parties no.1 to 3 therefore, had no right to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. There is no dispute that for making delayed payments, opposite parties no.1 to 3 were charging heavy rate of interest 24% p.a. as per Clause 5 (b) of the Agreement, for the period of delay in making payment of instalments. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant being original allottee is certainly entitled to get refund of the amount deposited by him, alongwith interest, from the respective dates of deposits till realization.
In view of above facts of the case, opposite parties no.1 to 3 are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.
Since, it has already been held that the complainant is entitled to refund of the amount deposited, alongwith interest and compensation, as such, the plea taken by opposite parties no.1 to 3, to the effect that they are ready to pay penalty amount for the period of delay, in delivery of possession of the unit, cannot be considered, at this stage. If opposite parties no.1 to 3 are allowed to invoke the relevant Clause of the Agreement, in the instant case, regarding payment of penalty, that would amount to enriching them, at the cost of the complainant.
At the same time, the plea taken by Counsel for the complainant that apart from refund of the amount alongwith interest, the complainant is also entitled to compensation for the period of delay in offering possession of the unit, in question, @Rs.5/- per square feet of super area of the unit, also cannot be accepted, as it would also amount to giving double benefit to the complainant i.e. enrichment at the hands of the opposite parties no.1 to 3. In Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital and Another, IV (2010) CPJ 199 (N.C.), the principle of law, laid down, by the National Commission, was to the effect that the compensation should be commensurate with loss and injury, suffered by the complainant. The compensation is required to be fair, just and not unreasonable and arbitrary. The Consumer Foras are not meant to enrich the consumers, at the cost of the service provider, by awarding unfair, unreasonable and highly excessive compensation. Once the complainant is held entitled to refund of the amount deposited alongwith interest and compensation, that will take care of the loss suffered by him, on account of non delivery of unit, in dispute.
In view of above, the cross pleas taken by both the parties concerned, in this regard, stand rejected.
The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. It may be stated here that since it is an admitted case that offer of possession of the unit, in question, could not be made till date, for want of construction and development work, as such, there is continuing cause of action, in favour of the complainant, in view of principle of law laid down, in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by limitation. The submission of Counsel for opposite parties no.1 to 3, in this regard, being devoid of merit, must fail, and the same stands rejected.
No other point was urged by Counsel for the parties.
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 directed as under:-
To refund the amount of Rs.13,03,780/- to the complainant, alongwith interest @15% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.75,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainant.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a., instead of @15% p.a. from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
However, it is made clear that, if the complainant is under debt of the loan amount availed from opposite party no.4 or from any other financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
Complaint against opposite party no.4 is dismissed with no order as to costs.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion Pronounced.
05.05.2017 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg.