National Consumer Disputes Redressal
Emaar Mgf Land Ltd. & Anr. vs Gurdev Singh Badial on 3 July, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 463 OF 2014 (Against the Order dated 25/06/2014 in Complaint No. 44/2014 of the State Commission Chandigarh) 1. EMAAR MGF LAND LTD. & ANR. ECE HOUSE, 28, KASTURBA GANDHI MARG, NEW DELHI-110001 2. EMAAR MGF LAND LTD. SCO NO. 120-121, 1ST FLOOR, SECTOR-17-C, CHANDIGARH ...........Appellant(s) Versus 1. GURDEV SINGH BADIAL PRESENTLY RESIDING AT: 219-R, MODEL TOWN, JALANDHAR, PUNJAB, ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. SURESH CHANDRA, MEMBER For the Appellant : Mr. Aditya Narain, Advocate with Mr. Arnav Narain and Mr. Shashank Bhushan, Advocates For the Respondent : Mr. Gaurav Chopra, Advocate with Mr. Arindam Ghose, Advocate Dated : 03 Jul 2015 ORDER As facts in above appeals are similar and common question of law is involved, hence, these appeals are being disposed of by this common order.
2. Above appeals have been filed by the Appellant/Opposite Parties against impugned order dated 25.6.2014, passed by State Consumer Disputes Redressal Commission, Chandigarh UT (for short, 'State Commission') in Consumer Complaints No.43 and 44 of 2014 filed by Complainants/Respondents Shri Dyal Singh and Shri Gurdev Singh Badial, respectively. Case of Dyal Singh is taken as the lead case.
3. Brief facts are, that Dyal Singh is residing in United Kingdom, where he had set up his own family business. Since, both sons of the respondent joined his business, and they emerged as successful entrepreneurs, he voluntarily took retirement from his business in the year 2011. The respondent had been frequently visiting India, especially Punjab Region, where he has a number of family relatives and friends, who are based in and around Chandigarh, Mohali, Jalandhar and Delhi. In order to live his post retirement life, respondent looked for buying a residential house, in the tricity. In the meantime, respondent came to know that the Appellants had launched their exclusively designed project, under the name and style of "Mohali Hills", which consisted of residential plots, flats, town house etc. etc., which were to be allotted, on first-cum-first-serve-basis. In their advertisements, published in various newspapers, the appellants had assured with regard to the commencement of construction and timely completion of the project aforesaid. Allured by such advertisements, and assurances, respondent applied for a residential apartment, to the appellants, in the said project, vide application dated 15.04.2008 for the purpose of his residence and self occupation. Alongwith the said application, an amount of Rs.7 lacs, vide cheque No.152970 was also deposited by the respondent. In response to the said application, respondent was allotted Unit/Apartment no.J1-F09-902, measuring 1550 square feet, alongwith one car parking space, in "The Views", Mohali Hills, Sector 105, S.A.S. Nagar, District Mohali, Punjab, vide allotment letter dated 23.05.2008. The price of the said unit was Rs.48,65,580.50Ps., which included Rs.1.50 lacs, towards per car parking, External Development Charges @Rs.112.31Ps. per square feet, and Interest Free Maintenance Charges (IFMC) @Rs.10/- per square feet. Apartment Buyer`s Agreement, was executed between the parties, on 17.06.2008, at Chandigarh. The respondent opted for installment payment plan, in respect of the said apartment. Thereafter, respondent had been diligently making payment of installments, as per the payment plan/schedule.
4. It was further stated that from 15.04.2008 till 03.07.2013, an amount of Rs.46,52,377/- through cheques as well as RTGS, had been paid by the respondent. Apart from that, respondent had also paid an amount of Rs.1,15,975/-, towards interest, on delayed payments of installments, in relation to the said apartment. It was further stated that according to Clause 21.1 of the Apartment Buyer`s Agreement dated 17.06.2008, the appellants were to handover physical possession of the residential apartment, in favour of the respondent, within a period of three years, from the date of allotment (23.05.2008), with further grace period of three months (90 days), for obtaining the Occupation Certification from the Competent Authorities. Thus, appellants were to deliver possession of the residential apartment, on or before 23.05.2011, or with grace period of 90 days, at the latest by 23.08.2011. However, the possession was not offered to the respondent, by the stipulated date. It was further stated that, in case of delay in handing over possession of the apartment, the appellants as per Clause 23.1 of the Apartment Buyer`s Agreement dated 17.06.2008, were liable to pay compensation @Rs.5/- per sq. ft. (Rupees Five only), per month of the super area, for the period of such delay, till the possession was given, but they failed to do so. When the physical possession of apartment in question, with all facilities and amenities, was not delivered to the respondent by the stipulated date, he visited the site in order to verify the status of construction of the allotted unit, but he was not permitted to do so by the representatives of the appellants. On the other hand, appellants kept on sending letters, with regard to demand of payment of remaining installments, towards the said apartment. Thereafter, letter dated 23.08.2013 in respect of intimation of possession of apartment, in question as also for settlement of final dues thereof, was received by the respondent from the appellants. It was further stated that, it was for the first time, intimated through this letter to the respondent, that there was a change/increase in the super area of the allotted unit, from 1550 square feet to 1908 square feet. It was further stated that appellants, vide aforesaid letter arbitrarily increased the price of the unit, to Rs.60,31,047.98Ps. from Rs.48,65,580.50Ps. and asked the respondent to remit the total amount of Rs.15,63,976/- i.e. Rs.11,17,869/- towards revised area, Rs.2,42,614/- towards 5% of basic and 5% of EDC, including applicable service tax, Rs.1,08,093/- towards delayed interest and Rs.95,400/- as IFMS (Interest Free Maintenance Security) @Rs.50/- per sq. ft. It was further stated that since it was an arbitrary step taken by the appellants, the respondent, immediately on the very next day, sent an email dated 29.08.2013, and expressed his discontentment with regard to unilateral revision of the super of the unit in question, as also the enhanced price thereof. However, in response to the same, the appellants vide email dated 30.08.2013, informed the respondent that the same had been done, in accordance with the terms and conditions of the Apartment Buyer`s Agreement dated 17.06.2008. It was further stated that when the request of the respondent was not acceded to, left with no alternative, he sent another email dated 17.09.2013 to the appellants, requesting them to cancel allotment of the said unit, and sought refund of the amount of Rs.46,52,377/-, deposited by him, towards the part price thereof, but no action was taken by them.
5. It was further stated that despite approaching the appellants, through every possible means for the purpose, they lingered on the matter on one pretext or the other, and on the other hand, kept on sending letters regarding making payment of the remaining sale consideration, towards the said unit. It was further stated that since the respondent had already made a request for cancellation of the unit in question, and refund of the price thereof, vide email dated 17.09.2013, he refused to make any further payment of installments, towards the remaining price of the same. The appellants suo moto increased the super area of the unit in question, and tried to take shelter under the provisions of the Apartment Buyer`s Agreement dated 17.06.2008. It was further stated that, as per the terms and conditions of the Apartment Buyer`s Agreement dated 17.06.2008, the appellants could not ask the respondent to pay the remaining installments, when request for cancellation of the unit and refund of the amount, deposited towards the same had been made, vide email dated 17.09.2013. Grievance of respondent is, that by not refunding the amount deposited in the circumstances aforesaid, the respondent suffered a lot of mental agony, physical harassment and was also caused financial loss. It was further stated that the aforesaid acts of the appellants, amounted to deficiency in rendering service as also indulgence into unfair trade practice. When the grievance of the respondent 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 seeking directions to the appellants, to refund the amount of Rs.46,52,377/- deposited by him, towards part price of the said apartment, alongwith compound interest @15% (compounded quarterly) from the respective dates of deposits, till realization; pay compensation to the tune of Rs.10 lacs, for financial loss, mental agony and physical harassment; further compensation to the tune of Rs.2,40,250/-, i.e. for around 34 months, calculated @Rs.5/- per square feet, per month of the super area, as per Clause 23.1 of the Apartment Buyer`s Agreement dated 17.06.2008, on account of delay in offering possession of the same and cost of litigation, to the tune of Rs.1 lac.
6. Appellants in their joint written version, pleaded, that since respondent is a permanent citizen of United Kingdom, he did not purchase the residential apartment in India, with a view to have his residence in the same, but on the other hand, being a speculator/investor, he had purchased the same (apartment) for resale thereof, as and when there was escalation in prices, and as such, he did not fall within the definition of a 'consumer', as per Section 2(1)(d)(ii) of the Act. It was further pleaded that the complaint was barred by time. It was further pleaded that State Commission has no territorial and pecuniary Jurisdiction, to entertain and decide the complaint. However, the factum of allotment of apartment in question, in favour of the respondent, vide allotment letter dated 23.05.2008, execution of the Apartment Buyer`s Agreement dated 17.06.2008, between the parties, stipulated date of delivery of possession of the apartment, as per Clause 21.1 of the Agreement, from the date of allotment; and payment of amount of Rs.46,52,377/-, through cheques as well as RTGS, towards part price of the same (apartment), as also the interest of Rs.1,15,975/- on delayed payments, was admitted. It was also admitted that possession of the apartment in question, could not be delivered in favour of the respondent by the stipulated date. It was stated that respondent was well aware of the fact that price of the unit and its area, were tentative and subject to change, as per the Apartment Buyer`s Agreement dated 17.06.2008. Since, the area of the unit had been revised/increased, as such the total cost of the unit, was enhanced from Rs.48,65,580.50Ps. to Rs.60,31,047.98Ps., out of which an amount of Rs.46,52,377/- had only been deposited by the respondent, alongwith interest of Rs.1,15,975/- on delayed payments. It was further stated that the balance amount was to be paid, as per the demands raised on due dates, mentioned in the payment schedule. It was further stated that only 5% of the basic sale price and other charges were payable at the time of intimation of offer of possession of the said apartment. It was further stated that the respondent failed to pay the amount of remaining installments, despite having sent him the letters followed by reminders. It was further stated that appellants also sent letter dated 23.08.2013, vide which intimation of possession of the unit in question, as also for the settlement of final dues, was given to him. It was further stated that, in the said letter it was also intimated to the respondent, that Occupation Certificate from the Competent Authorities in respect of the Tower, wherein the said apartment was allotted, had been obtained and that super area of the same (apartment) had been changed/revised to 1908 square feet, from 1550 square feet.
7. It was further stated that statement of account was also sent to the respondent, alongwith letter dated 23.08.2013. It was further stated that, in case of any delay beyond the time frame mentioned in the Apartment Buyer`s Agreement dated 17.06.2008, interests of the respondent were duly safeguarded. It was further stated that appellants asked the respondent to take possession of the apartment in question on payment of the remaining amount, alongwith other charges, but he failed to do so. It was further stated that respondent was liable to pay holding charges, as per the terms and conditions, contained in the Apartment Buyer`s Agreement dated 17.06.2008. It was further stated that since there had been delay, in remitting the installments by the respondent, he was not entitled to compensation under Clause 23.1 of the Apartment Buyer`s Agreement dated 17.06.2008. It was further stated that all demands were raised by the appellants, on completion of construction milestones. It was further stated that peaceful possession of other apartments, to various allottees in the Tower, where the unit of the respondent is located, had been delivered. It was further stated that upon obtaining Occupation Certificate, from the Competent Authorities, the respondent was called upon to take possession, on payment of the outstanding installments alongwith other charges, but he failed to pay the same. It was further stated that cancellation of allotment, was to be governed by the terms and conditions contained, in the Apartment Buyer`s Agreement dated 17.06.2008 and as such, would involve forfeiture of the earnest money. It was further stated that neither there was any deficiency, in rendering service, on the part of the appellants, nor they indulged into unfair trade practice.
8. The State Commission vide its impugned order partly allowed the complaint and passed the following directions;
"i) The Opposite Parties are directed to refund the amount of Rs.42,91,516.80Ps. i.e. Rs.47,68,352/- minus (-) Rs.4,76,835.20Ps., being 10% of Rs.47,68,352/-, to the complainant, alongwith interest @ 12% per annum, from the respective dates of deposits, within 45 days, from the date of receipt of a certified copy of this order.
ii) The Opposite Parties are further directed to pay compensation, in the sum of Rs.1.50 (One lac fifty thousand only), for causing mental agony and physical harassment, to the complainant, as also escalation in prices of the real estate, within 45 days, from the date of receipt of a certified copy of this order.
iii) The Opposite Parties are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
iv) In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A., instead of 12 % 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.20,000/-."
9. Being aggrieved, appellants have filed these appeals.
10. We have heard the learned counsel for the parties and have perused the written submissions filed by the appellant in FA No.462 of 2014 and have also gone through the record.
11. It is submitted by learned counsel for the appellant, that impugned order has over looked and ignored the transaction as a whole of booking of 2 apartments by Non-Resident Indians, residing at the same U.K. address, booking the Apartments and executing the Agreement on the same day and sending common correspondence to the Appellant, thereby demolishing the myth of being a consumer in terms of the Agreement dated 17.06.2008 entered into between parties. There have been consistent defaults on the part of the respondents in making payment of instalments to the Appellants. There is also repeated failure on the part of the respondents to pay delayed payment charges on the pretext or excuse of increased super area agreed to by respondent so as to wriggle out of the contract. Further, respondents were defaulter in making payment of instalments to the appellant. The respondents were delaying in making payments of instalments, which is evident from the delayed interest charges levied by the appellant on the respondents.
12. In these circumstances, it is submitted that respondents who were admittedly defaulter, could not be given possession of the apartment until and unless all payments were made. This fact was known to the respondents who being aware of their own default and delays in making payments, did not raise any issue of delay in delivery of possession. It is also submitted, that respondents had by agreement dated 17.6.2008 also agreed to delay in delivery for which the appellant was required to pay compensation at a mutually agreed rate, which was final and binding on the respondents. For this reason, respondents could not resile from the terms and conditions of the agreement dated 17.6.2008. In any event, respondents had defaulted in making payment of instalments in accordance with the demands raised by the appellant. It is further submitted, that the said Apartment was ready in all aspects and appellant had also called the respondents by letter dated 02.12.2013 to take the possession after payment of all the dues which was refused to and ignored by the respondents. Thus, there is no deficiency on the part of the appellants.
13. In support, learned counsel for the appellant has relied upon the following judgments;
"i. Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., (1996) 4 Supreme Court Cases 704;
ii. Union Bank of India Vs. Seppo Rally OY and another,
(1999) 8 Supreme Court Cases 357;
iii. Consumer Unity & Trust Society, Jaipur Vs. Chairman & Managing Director, Bank of Baroda, Calcutta and another, (1995) 2 Supreme Court Cases 150 and iv. Godfrey Pillips India Ltd. Vs. Ajay Kumar, (2008) 4 Supreme Court Cases 504."
14. On the other hand, it is contended by learned counsel for the respondents that appellants have violated the terms of the agreement executed between the parties, since possession of the apartment was never offered within the agreed period. Thus, there is deficiency on the part of the appellants. For the first time, the possession was offered in the year 2013 only, whereas as per the agreement, the possession was to be handed over latest by 23.8.2011. Thus, appellants have been retaining illegally the amount deposited by the respondents as early as in the year 2008. It is further contended by learned counsel for the respondents, that there is no infirmity or illegality in the impugned order passed by the State Commission. In support, learned counsel for respondents has relied upon following decisions of this Commission;
"i. Emaar MGF Land Ltd. and another Vs. Krishan Chander Chandna, [First Appeal No.873 of 2013 decoded on 29.9.2014] and ii. Emaar MGF Land Ltd. and another Vs. Karnail Singh and another, First Appeal No.342 of 2014 decoded on 25.7.2014
15. The State Commission in its impugned order has held that respondents are consumer and while allowing the complaints, it further observed;
"17. The next question, that falls for consideration, is, as to whether, the Opposite Parties could increase the area of the apartment, or not. No doubt, the Counsel for the complainant submitted that, as per the terms and conditions contained in the Apartment Buyer`s Agreement dated 17.06.2008, Annexure C/4, the Opposite Parties could not increase the area, of the apartment. Whereas, on the other hand, the stand of the Opposite Parties, was to the effect, that they could increase the area, even beyond 10%, by giving due notice to the complainant, and, as such, they vide letter dated 23.08.2013 Annexure C/9, intimated the complainant that the area of apartment had been revised, and increased to 1908 square feet, from 1550 square feet, as a result whereof, its price was enhanced from Rs.48,65,580.50Ps., to Rs.60,31,047.98Ps, and, as such demand of the same was raised, towards the difference of amount thereof. For proper determination, of this question, it would be necessary to refer to the relevant Clauses 1.2 and 1.3 of the Apartment Buyer`s Agreement dated 17.06.2008, Annexure C-4, which are reproduced below:-
"1.2 The Allottee agrees and understands that the Sale Price of the Agreement shall be calculated on the basis of the Super Area (as defined and detailed out in Annexure III) and that the Super Area as stated in this Agreement is tentative and subject to change till the completion of the construction and the issuance of the occupation certificate by the competent authorities. The final super area of the Apartment shall be confirmed by the Company only after the construction is complete and the issuance of the completion certificate by the authorities.
1.3 The total price payable for the Apartment shall be re-calculated upon confirmation by the Company of the final Super Area. Any increase or reduction in the super area shall be payable or refundable as the case may be without any interest at the same rate per sq. ft of Super Area as abovestated. If there is an increase in the Super Area the Allottee shall pay to the company immediately upon demand raised by the Company. If there is a reduction in the super area the refundable amount shall be adjusted by the Company in any amount receivable from the Allottee or shall be adjusted by the Company from the final instalment as set forth in the Schedule of Payments".
18. From the afore-extracted Clauses 1.2 and 1.3 of the Apartment Buyer`s Agreement dated 17.06.2008, Annexure C-4, it is evident, that the complainant agreed that the sale price of the apartment was to be calculated on the basis of the super area, which was tentative and subject to change, till the completion of construction, and the issuance of the Occupation Certificate, by the Competent Authorities. The final super area of the apartment was to be confirmed by the Opposite Parties, only after the construction was complete, and issuance of the Completion Certificate by the Competent Authorities, and, thereafter, the complainant was liable to pay to them (Opposite Parties), immediately, upon demand raised by them, towards the difference of amount thereof. The submission of the Counsel for the complainant, that the Opposite Parties could not increase the area, of the apartment, being devoid of merit, must fail, and the same stands rejected.
19. The next question, that falls for consideration, is, as to whether, in the event of any alteration/modification resulting in more than 10% (ten percent) increase or decrease, in super area of the apartment, in question, by the Opposite Parties, the complainant was bound to accept the same, or he could exercise his right, to refuse to accept the same; ask for cancellation of the apartment, and seek refund of the amount deposited by him, towards the same (apartment). For proper determination of this question, it would be necessary to refer to the relevant Clause 18.1 of the Apartment Buyer`s Agreement dated 17.06.2008, Annexure C-4, which is reproduced below:-
"18 ALTERATION/MODIFICATION 18.1 In the event of any alteration/modification resulting in more than 10% (ten percent) increase or decrease in Super Area of the Apartment, the Company shall in its sole opinion, any time prior to or upon the grant of occupation certificate, intimate the Allottee in writing of such increase or decrease in Super Area thereof and the resultant change, if any, in the Sale Price of the Apartment. In the event that the Allottee has any objection to such increase or decrease in Super Area, the Allottee shall within thirty (30) days of intimation of the increase or decrease by the Company file objections, failing which it shall be deemed that the Allottee has no objections and has given absolute consent to such increase or decrease in super area and/or any alterations/modifications and for payments, if any, to be paid in consequence thereof. However, in case the Allottee demands refund of the monies deposited by the Allottee towards the Apartment booking, then the Company, shall cancel this Agreement without any further notice and refund the money received from the Allottee within thirty (30) days of the sale of the Apartment to any third party. The Company shall refund the money to the Allottee after deduction of the Earnest Money, whereupon, the Company and/or the Allottee shall be released and discharged from all their obligations and liabilities under this Agreement. It being specifically agreed that irrespective of any outstanding amount payable by the Company to the Allottee, the Allottee shall have no right, lien or charge on the Apartment in respect of which refund as contemplated by this clause is payable".
20. It is evident from the afore-extracted Clause 18.1 that, in the event of any alteration/modification resulting in more than 10% (ten percent) increase or decrease, in the super area of apartment, in question, the Opposite Parties, at any time, prior to or upon the grant of Occupation Certificate, were required to intimate the complainant, in writing, with regard to the same. On the other hand, if the complainant had any objection, to such increase or decrease in the super area, he was required to file the same (objection), within thirty (30) days, of intimation of the same, failing which it was to be deemed that he had no objection, and had given absolute consent to the same, as also the difference of amount/payments, if any, to be paid in consequence thereof. It is further evident, from this Clause, that, in case, the complainant demands refund of the amount, deposited by him, towards the apartment, then the Opposite Parties, would cancel the said Agreement, without any further notice, and refund the money received from him, after deducting the earnest money. It may be stated here, that the moment the complainant received letter dated 23.08.2013, Annexure C/9, with regard to the increase of super area of the apartment to 1908 square feet, from 1550 square feet, he, immediately, vide email dated 29.08.2013 i.e. on the very next day, objected to the same. Thereafter, vide email dated 17.09.2013 Annexure C/12, i.e. within a period of 30 days, from the date of receipt of letter dated 23.08.2013 Annexure C/9, filed his objection, in accordance with Clause 18.1 extracted above, and exercised his right, asking to cancel the apartment, in question, and sought refund of the amount of Rs.46,52,377/-, deposited by him, towards part price of the apartment, in question, alongwith interest and compensation, but the Opposite Parties did not do so. It may be stated here, that, as per Clause 3.2, of the Apartment Buyer`s Agreement dated 17.06.2008, Annexure C-4, the Opposite Parties could forfeit the amount of earnest money, which as per Clause 3.1 is 10% of the sale price of apartment, and the rest of the amount paid by the complainant was to be refunded to him. Thus, the complainant was entitled to the refund of amount paid by him, minus (-) the earnest money to the extent of 10% of the sale price of the apartment, in question. In the present case, since an amount of Rs.46,52,377/-, plus interest of Rs.1,15,975/-, was paid to the Opposite Parties, therefore, the complainant was entitled to the refund of Rs.42,91,516.80Ps. i.e. (Rs.47,68,352/- minus (-) Rs.4,76,835.20Ps., being 10% of Rs.47,68,352/-), which the Opposite Parties were liable to pay. By not cancelling the apartment, in question, after receiving the email dated 17.09.2013 Annexure C/12, i.e. within a period of 30 days, from the date of receipt of letter dated 23.08.2013 Annexure C/9, and by not refunding the amount ofRs.42,91,516.80Ps., calculated in the manner, referred to above, the Opposite Parties were deficient, in rendering service, and also adopted unfair trade practice.
21. The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount of Rs.42,91,516.80Ps., referred to above, and if so, at what rate. It may be stated here, that the complainant was deprived of his hard earned money, as the Opposite Parties did not refund the amount aforesaid, despite the fact that vide email dated 17.09.2013 Annexure C/12, i.e. within a period of 30 days, from the date of receipt of letter dated 23.08.2013 Annexure C/9, in accordance with Clause 18.1 extracted above, he exercised his option, to cancel the apartment, in question, and sought refund. The complainant was, thus, caused financial loss. The hard earned money of the complainant was utilized by the Opposite Parties, for a sufficient longer period. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Parties had charged compound interest @15% P.A., from the complainant, as per Clause 20.1 of the Apartment Buyer`s Agreement dated 17.06.2008, Annexure C/4. By not refunding this amount, the Opposite Parties, were deficient, in rendering service. Under these circumstances, in our considered opinion, if interest @ 12% P.A., on the amount, referred to above, from the respective dates of deposits, is granted, that will serve the ends of justice.
22. The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, for mental agony and physical harassment. As stated above, the hard earned money of the complainant was used by the Opposite Parties, for a long time, and it was not refunded to him, despite the fact that he exercised his option, as per Clause 18.1 of the Apartment Buyer`s Agreement dated 17.06.2008, Annexure C-4, for cancelling the allotment of apartment, and seeking refund of the price deposited by him, vide email dated 17.09.2013 Annexure C/12, i.e. within a period of 30 days, from the date of receipt of letter dated 23.08.2013, Annexure C/9. The complainant shall also not be able to purchase the apartment, like the one, in question, at the same rate, at which it was allotted to him, due to escalation in prices. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to him, at the hands of the Opposite Parties, as also escalation in prices of the real estate, to the tune of Rs.1,50,000/- (One lac fifty thousand only) which could be said to be adequate and reasonable.
23. It was submitted by the Counsel for the Opposite Parties, that since the parties are governed, by the terms and conditions of the Apartment Buyer`s Agreement dated 17.06.2008, Annexure C-4, as per Clause 23.1 of the same (Apartment Buyer`s Agreement), in case of delay, in delivery of physical possession of the apartment, they (Opposite Parties), were only liable to make payment of penalty, in the sum of Rs.5/- (Rupees Five only) per sq. feet per month, of the super area, for such period of delay, beyond three years, from the date of allotment of the same. He further submitted that the Opposite Parties were ready to pay this amount, for the period of delay, in delivery of possession of the apartment. It may be stated here, that such a submission of the Counsel for the Opposite Parties, would have been considered to be correct, had the complainant, prayed for delivery of physical possession of the apartment. In the instant case, as stated above, prayer for the refund of amount, referred to above, was made by the complainant, in the complaint, in the circumstances, referred to above. This Clause could be invoked, by the Opposite Parties, only, in the event, the complainant, in the complaint, had sought the relief of delivery of physical possession of the apartment. As stated above, the hard earned money of the complainant was used by the Opposite Parties, for investment, for a long time. He was not refunded the amount, to which he was entitled to. If the Opposite Parties are allowed to invoke Clause 23.1 of the Agreement, in the instant case, that would amount to enriching them, at the cost of the complainant. Under these circumstances, shelter cannot be taken by the Opposite Parties, under Clause 23.1 of the Apartment Buyer`s Agreement dated 17.06.2008, Annexure C-4. Had the complainant prayed for possession of the apartment, in question, in the complaint, the matter would have been different. The complainant, in our considered opinion, as stated above, is entitled to the refund of amount of Rs.42,91,516.80Ps., referred to above, alongwith interest @ 12% P.A., from the respective dates of deposits.
24. The Counsel for the complainant, submitted that the complainant, besides refund of the amount, aforesaid, alongwith interest and compensation, is also entitled to penalty @Rs.5/- per square feet, per month of the super area, as per the Apartment Buyer`s Agreement dated 17.06.2008, Annexure C/4, referred to above, for such period of delay, beyond three years, from the date of allotment of the apartment, in question. This submission of the Counsel for the complainant, does not appear to be correct. Such a submission of the Counsel for the complainant, would have been considered to be correct, had the complainant, prayed for delivery of physical possession of the apartment. In the instant case, as stated above, prayer for the refund of amount, aforesaid, was made by the complainant, in the circumstances, referred to above. This Clause could be invoked by the complainant, only, in the event, he had sought the relief of delivery of physical possession of the apartment. The complainant, in our considered opinion, as stated above, is only entitled to the refund of amount, aforesaid, alongwith interest @12% P.A., which (interest) would take care of financial loss, suffered by him. As far as compensation for mental agony and physical harassment, damages, and escalation in prices is concerned, the complainant has been separately awarded the same, to the tune of Rs.1,50,000/-, as held in paragraph 22 above."
16. Admittedly, appellants did not offer possession of the apartment within the prescribed period, in terms of Clause 21 of the "Apartment Buyer's Agreement", Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering service but are also guilty of indulging into unfair trade practice. The appellants in the present case are enjoying the hard earned money of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.
17. Appellants/Builders in the present case "wants to have the cake and eat it too", as admittedly they had received substantial amount of consideration. Thus, appellants being the builder are enjoying the possession of the apartment as well as substantial amount of consideration paid by the respondents. On the other hand, respondents after having paid substantial amount of consideration of the apartment, are still empty handed.
18. Such type of unscrupulous act on the part of appellants/builders should be dealt with heavy hands, who after grabbing the money from the purchasers, enjoy and utilize their money but does not hand over the possession, on one pretext or the other. Appellants wants the respondents to run from one fora to other, so that appellants can go on enjoying respondents' money without any hindrance.
19. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless appeal. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree, must be dealt with heavy hands. Unscrupulous builders like appellants who after taking substantial cost of the apartment, do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of builders, that this Commission is not helpless in such type of matters.
20. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon the appellants for dragging the respondent upto this fora, when appellants had no case at all. It is not that every order passed by the judicial fora is to be challenged by the litigants, even if the same are based on sound reasonings.
21. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, the Apex Court observed;
"Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system."
22. Further, the Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors. (Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011) has also observed ;
"45. We are clearly of the view that unless we ensure that wrong -doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases".
The court further held;
50. Learned Amicus articulated common man's general impression about litigation in following words;
"Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road."
Lastly, the Apex Court observed;
54. While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts the appellants have also wasted judicial time of the various courts for the last 40 years.
56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well-reasoned impugned order/ judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/-. We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation".
23. Thus, present appeals are nothing but gross abuse of process of law and same are required to be dismissed with punitive damages. Accordingly, present appeals stand dismissed with punitive damages of Rs.5,00,000/-(Rupees Five lakhs only. Out of this amount, sum of Rs.2,50,000/-(Rupees Two Lacs Fifty Thousand only) shall be paid to both the respondents in equal share.
24. Appellants are directed to deposit the sum of Rs.2,50,000/-(Rupees Two Lacs Fifty Thousand only) by way of demand draft in the name of 'Consumer Legal Aid Account' of this Commission within four weeks from today and balance amount of Rs.2,50,000/-(Rupees Two Lacs Fifty Thousand only) be deposited in equal share in the name of both the respondents, by way of demand draft with this Commission from today.
25. Punitive damages awarded in favour of the respondents shall be paid to them only after expiry of period of appeal or revision preferred, if any.
26. In case, appellants fail to deposit the aforesaid amount within the prescribed period, then they shall also be liable to pay interest @ 9% p.a. till realization.
27. Pending application stand disposed of.
28. List for compliance on 14.8.2015.
......................J V.B. GUPTA PRESIDING MEMBER ...................... SURESH CHANDRA MEMBER