State Consumer Disputes Redressal Commission
Dibyendu Bera vs M/S Premium Acres Infratech Pvt. Ltd. on 14 March, 2019
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 685 of 2017 Date of Institution : 08.09.2017 Date of Decision : 14.03.2019 Dibyendu Bera S/o Sh. Ranjan Kumar Bera resident of Sun City Parikarma, 5A/901, Sector 20, Panchkula, Haryana. ......Complainant V e r s u s M/s Premium Acres Infratech Pvt. Ltd., SCO No.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 Acres Court Yard, Sector 110-111, SAS Nagar (Mohali) through its Managing Director/Authorised Representative. Parminder Singh Sehgal (Managing Director), Premium Acres Infratech Private Limited, r/o H.No.1227, Sector 42-B, Chandigarh - 160036. Second Address:- Parminder Singh Sehgal (Managing Director), Premium Acres Infratech Private Limited, r/o H.No.61-62, Sector 70, Mohali. LIC Housing Finance Limited, SCO No.2445-46, Sector 22-C, Chandigarh. .... Opposite Parties BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT MRS. PADMA PANDEY, MEMBER
MR. RAJESH K. ARYA, MEMBER Argued by:
Ms. Vertika H.Singh, Advocate for the complainant.
Sh. Parminder Singh, Advocate for Opposite Parties No.1 & 2.
Sh. Sumit Batra, Advocate for Opposite Party No.3.
PER PADMA PANDEY, MEMBER The facts, in brief, are that Opposite Parties No.1 & 2/Builder had launched the project of "TDI City" with great marketing and advertising all over Punjab. The complainant was allured by builder regarding the benefits of the said project and, as such, he (complainant) applied for a unit bearing No.17702 in the project of M/s Premium Acres Infratech Private Limited vide application dated 26.01.2011. Thereafter, Buyer Agreement dated 13.09.2011 with respect to the said unit was executed between the parties (Annexure C-1). According to Clause 9 of the Agreement, possession of the said unit was to be handed over by builder to the complainant within a period of 24 months (18 months + 6 months grace period) from the date of the Agreement i.e. by 13.09.2013. It was further stated that the basic sale price of the unit was Rs.25,80,000/- and the aggregate sale price of the said unit, as agreed, in the Agreement was Rs.29,29,000/- including EDC & PLC. The complainant got sanctioned a loan from Opposite Party No.3 vide letter (Annexure C-2). It was further stated that there was some issues regarding title of the land, as such, the said unit No.17702 was cancelled. Thereafter, another unit No.6102 having similar specifications was allotted in favour of the complainant and fresh Buyer's Agreement dated 07.07.2012 (Annexure C-3) was executed between the parties. As per Clause 9 of the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of the Agreement i.e. latest by 06.07.2014. It was further stated that the builder reduced the PLC of the new allotted unit and resultantly, the total aggregated sale price of the said unit was Rs.28,51,600/-, which included EDC & PLC. Therefore, fresh loan was got sanctioned from LIC on 26.07.2012. The complainant opted for Construction Linked Payment Plan. It was further stated that the complainant made the regular payments, as and when demanded by the builder. It was further stated that the complainant had already made the payment of Rs.22,50,000/- but till 30.09.2013 only the basic structure was standing and even the plastering work had not commenced. It was further stated that the builder raised a demand of Rs.72,657.96 vide demand letter dated 31.01.2014 (Annexure C-5), as such, the complainant contacted the builder, who agreed that the interest was wrongly levied, therefore, assured the complainant that the interest should be reversed. Thereafter, no demand was raised by the builder. It was further stated that on 18.12.2014 the builder sent a payment demand notice for an amount of Rs.21,83,494/- (Annexure C-6), in which, it has been stated that the said payment was to be handed over within 150-180 days from the date of realization of the payment. It was further stated that the complainant had never committed default in making the payment. The complainant vide email dated 23.01.2015 (Annexure C-7) sought clarification from the builder regarding the demand notice dated 18.12.2014, in which, it has been requested to rectify the demand letter and resend the corrected value, as the possession had already been delayed by the builder. Thereafter, the complainant sent number of reminders to the builder for clarification of the demand notice vide emails/letters dated 24.01.2015, 29.01.2015, 28.02.2015 (Annexure C-8 colly.). However, the builder maintained complete silence and even did not bother to reply to the queries of the complainant. It was further stated that the complainant again requested vide email dated 25.04.2015 (Annexure C-9) to the builder to rectify the demand raised by it. Accordingly, the builder sent payment notice dated 29.04.2015 (Annexure C-10), whereby, a demand of Rs.11,83,000/- was raised. It was further stated that the complainant forwarded the said demand letter to Opposite Party No.3 vide email dated 30.05.2015 (Annexure C-11) for releasing of the said amount. However, Opposite Party No.3 released only an amount of Rs.2,20,000/- on 13.06.2015 against the demand of Rs.11,83,000/- and when the complainant enquired from Opposite Party No.3, it was clarified that the payment has to be released as per the construction status and not beyond that. It was further stated that the builder issued a payment defaulter notice dated 25.12.2015 (Annexure C-12), whereby, again a demand of Rs.10,63,025/- was demanded. It was further stated that the builder assured that the flat should be ready within three months of making further payment of Rs.3 lakhs but Opposite Party No.3 refused to make any payment, as such, the complainant made the payment of Rs.3 lakhs from his own pocket. Thus, the complainant made the total payment of Rs.27,70,000/- to the builder. However, the builder failed to deliver possession of the unit, in question, to the complainant. It was further stated that the complainant or his wife visited the site several times for conforming the progress but every time the builder came up with different frivolous reasons for the delay in the construction work. It was further stated that the complainant vide email dated 17.10.2016 and thereafter reminder dated 07.11.2016 sought for cancellation of the allotment and requested the builder to refund the entire amount paid by the complainant (Annexures C-13 & C-14) but no reply was received from the builder. The builder sent payment defaulter notice dated 21.04.2017 (Annexure C-15) and raised the demand of Rs.11,93,265/-. It was further stated that the builder had maintained complete silence for more than a year from 14.01.2016 to 21.04.2017 and never raised any demand during the intervening period. It was further stated that the complainant was bound to make the payment only as per the construction work and had rather paid more than the status of the construction work. It was further stated that the electric, water and sewerage connection charges were to be paid by the complainant only at the time of possession of the said unit. It was further stated that there was no parks, no street lights, no roads and the builder demanded the aforesaid charges without even completing the flooring work of the said unit. It was further stated that the complainant paid the total amount of Rs.27,70,000/- out of the aggregate sale price of Rs.28,51,600/- in respect of the unit, in question. It was further stated that the complainant is residing in a rental accommodation and had a dream of shifting into his own house at the earlier but his dreams was completely shattered by the act and conduct of the builder. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the 'Act' only), was filed.
2. Opposite Parties No.1 & 2, in their joint written version, have taken objection that the complainant has not approached this Commission with clean hands, as he himself in default of making the payment of the flat, in question at the fag end when the flat is fully complete and ready for possession, which has been communicated to the complainant vide different demand notices, which are duly exhibited by the complainant as Exhibits C-6, C-10, C-12 & C-15 and once the person who has not paid the amount, how he expect that the flat would be completed in time and the same would be handed over to him, although the replying Opposite Parties completed the construction (upto 100%) since 18.12.2014 with only finishing touches and removal fittings are left to be completed. It was further stated that the complainant has filed forged and fabricated documents alongwith supporting affidavits especially documents i.e. Buyer Agreement, which was not signed by the authorized person and Annexure C-5, which was not issued by the replying Opposite Parties. It was further stated that the complainant in connivance with Sh.Sanjay Jain (Ex-Director), who has been shunted out from the office of the replying Opposite Parties alongwith Sh.Amit Jain and others for defrauding the replying Opposite Parties by producing forged and fabricated documents not only to the complainant but also to numerous customers, so that the financial loss should be caused to the replying Opposite Parties, for which, FIR was lodged against Sh.Sanjay Jain and anticipatory bail application was dismissed by the Sessions Court, Chandigarh. On the basis of fraud and forgery committed by the aforesaid accused, the National Company Law Board has also ruled vide order dated 09.01.2017 (Annexure R-6) in favour of the replying Opposite Parties regarding its ownership with the present Directors. It was further stated that the complainant paid the total amount of Rs.27,70,000/- but it was not the complete and final payment, as the total product cost of the flat would include all types of costs under different heads. It was further stated that complicated question of facts regarding the payment made and demanded so only the Civil Court has the power to decide the matter. It was further stated that this Commission has no territorial jurisdiction to adjudicate the complaint, as Clause 36 of the Agreement clearly states that Courts at Delhi alone have the jurisdiction for adjudication of all the matters arising out in connection with the Agreement and even the concerned Chandigarh office is lying closed for the last so many years. It was further stated that 85% of the persons are fully satisfied and have paid their dues and have already been given the possession, whereas, only some of these persons are adamant of not making the payment, which they are legally liable to make on the asking of some of the old and shunted out employees like Sanjay Jain, who is the main brain behind all these litigations which are being filed against the replying Opposite Parties. It was further stated that the replying Opposite Parties filed criminal complaint not only against Sh.Sanjay Jain, one Sh.Amit Jain as well as others also because of these persons, the replying Opposite Parties have suffered financial losses. It was further stated that the complainant has purchased the property not for residential purpose as he is living in Panchkula and no evidence has been attached with this complaint, which suggest that the complainant alongwith his family want to live in this unit at any point of time, and, therefore the unit purchased by the complainant is only for speculation purposes and, as such, he cannot be termed as a Consumer under the Consumer Protection Act, 1986. It was further stated that the complaint is also not maintainable on the ground of non-joinder of necessary parties as the Buyer's Agreement was signed by Mr.Amit Jain, for which, he is a necessary party to be impleaded. It was further stated that the reallocation of the flat to the complainant is concerned, it is the decision of old Management and the complainant has accepted without any protest. It was denied that the agreegate sale price to be at Rs.28,51,600/- because the total final product cost is always issued in the form of final cost invoice, which is Exhibit R-2. It was admitted that Construction Linked Payment Plan was opted by the complainant. It was further stated that the complainant be put to strict proof to prove that only a basic structure was standing till 18/12/14 because as per Annexure R-8 i.e. the Construction Certificate, it is clear that the construction of the flat was complete by 18.12.2014 and only the finishing touches and removal fittings are to be installed. It was denied that emails (Annexure C-8) were received and not replied back because the replying Opposite Parties always tried to have one to one talk with the customers. It was further denied that the replying Opposite Parties received emails Annexures C-13 and C-14 seeking refund of the amount, as the replying Opposite Parties are regularly in touch with the complainant and that is why in that due course of time, the replying Opposite Parties issued demand notice Annexure C-15 in furtherance of demand notice Annexure C-12. It was further stated that all the other charges correctly demanded by the replying Opposite Parties, as Annexure R-9 (photographs) clearly shows the proper development is there and property is residentially habitable. It was further stated that the amount of Rs.7,000/- per month, as per Clause 9 is only payable if there is a delay on the part of the replying Opposite Parties, which in this case is not there at all. It was further stated that there was no fault on the part of the replying Opposite Parties, as such, the complainant sought refund of the entire amount with interest cannot be allowed. It was further stated that neither there was any deficiency, in rendering service, on the part of replying Opposite Parties, nor they indulged into unfair trade practice.
3. Opposite Party No.3 in its written statement, stated that the replying Opposite Party is only financial institution, who sanctioned loan of Rs.22,00,000/- to the complainant vide letter dated 26.07.2012 (Annexure C-6) and the complainant paid the entire outstanding dues, as such, the account of the complainant closed on 07.09.2017 and copy of account statement is Annexure OP-3/1. It was further stated that no claim was claimed by the complainant qua the replying Opposite Party, as such, there is no deficiency in service on the part of the replying Opposite Party and prayed for dismissal of the complaint qua Opposite Party No.3.
4. The complainant filed rejoinder to the written statement of Opposite Parties No.1 & 2, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.1 & 2.
5. The Parties led evidence, in support of their case.
6. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
7. The first question, that falls for consideration, is as to whether, this Commission has got territorial Jurisdiction to entertain and decide the consumer complaint, or not. No doubt, Counsel for Opposite Parties No.1 & 2, submitted that since the parties as per Clause 36 of the Buyer Agreement, agreed that the Courts at Delhi alone, would have Jurisdiction, for adjudication of all matters arising out or in connection with the same (Agreement). He further submitted that the concerned office at Chandigarh was lying closed for the last so many years, so, this Commission has got no territorial Jurisdiction, to entertain and decide the complaint. The submission of Counsel for Opposite Parties No.1 & 2, in this regard, being devoid of merit, is liable to be rejected, for the reasons, to be recorded hereinafter. In the first instance, it may be stated here, that the Consumer Foras' are not the Courts. It is pertinent to note that Buyer Agreement which was executed between the parties, at Chandigarh, on 07.07.2012 vide Clause 36 of the Agreement, only confers Jurisdiction on the Courts at Delhi. Under these circumstances, 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 a clause of Jurisdiction, by way of an Agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act, which a para materia to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction. Now the plea of Counsel for Opposite Parties No.1 & 2 that the Company office of Chandigarh has closed and this Commission has no jurisdiction, has also no value, at all because at the time of booking of the unit by the complainant, the office of the Company was functioning at Chandigarh. It means that the Company kept the complainant in dark since no such communication was ever sent to the complainant regarding closing down of the Chandigarh office. Moreover, not only first Buyer Agreement, which was executed between the parties on 13.09.2011 (Annexure C-1) at Chandigarh but also another Buyer Agreement (Annexure C-3) annexed by the complainant, was also executed between the parties at Chandigarh. As such, a part of cause of action, accrued to the complainant, 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 the Counsel for Opposite Parties No.1 & 2, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
8. The objection taken by Opposite Parties No. 1 & 2, to the effect that the complainant has not purchased the property for residential purpose but for selling/investment for reaping extra profits and, as such, he cannot be termed as "Consumer" under the Consumer Protection Act, 1986. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, 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. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Parties No.1 & 2, 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. The complainant in para No.9 of the complaint clearly stated that he is staying in a rented accommodation and has a double burden of paying the rent as well as paying the interest on the loan taken from OP No.3, as such, he required the said flat at the earlier. Further in para No.19 of the complaint, he clearly stated that the flat was purchased by the complainant for his own residential purposes. 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. 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 & 2, therefore, being devoid of merit, is rejected.
9. The next question that falls for consideration is whether the complaint is maintainable on the ground of non-joinder of necessary party i.e. Mr.Amit Jain, who has signed the Buyer's Agreement. It may be stated here that the complainant booked the unit of M/s Premium Acres Infratech Pvt. Ltd. and paid the huge amount in respect of the unit and he did not know who is Mr. Amit Jain. If the aforesaid official/any other official received the amount of the unit from the complainant and signed the Buyer Agreement, it was done by him being an employee, who could receive the said amount on behalf of the Company. In the present case, we do not feel that Mr.Amit Jain is the necessary party. So, the objection taken by Opposite Parties No.1 & 2 has no force, at all and the same stands rejected.
10. The next question that falls for consideration is whether Annexures C-3 i.e. Buyer Agreement & Annexure C-5 letter dated 31.01.2014 attached by the complainant alongwith his complaint is forged and fabricated documents. The Counsel for Opposite Parties No.1 & 2 submitted that the documents Annexures C-3 & C-5 are forged and fabricated documents because the documents are created with the active connivance of the complainant with Mr.Sanjay Jain, Mr.Amit Jain and others for causing huge loss to the Company. He further submitted that Mr.Sanjay Jain and Mr. Amit Jain, embezzled its (Company) huge amount and also played fraud with it (Company). He further admitted regarding the receipt of the amount of Rs.27,70,000/- for the unit, in question. He further submitted that Mr.Amit Jain, who was not even authorized to sign any document of the Company had entered into a Buyer Agreement and signed on behalf of the Company. Not only this, the document Annexure C-5 stated that the total due amount was only Rs.72,657/-, which is forged and fabricated document. He further stated that the said documents were issued in advance in connivance with Sh.Sanjay Jain & Sh.Amit Jain and others. Therefore, an FIR registered against Mr. Sanjay Jain, Mr. Amit Jain and others for their illegal and conspiracy regarding the fraud committed by them with the Company. It is, no doubt, true that Mr.Sanjay Jain and Mr.Amit Jain were the officials of the Company. On the other hand, Counsel for the complainant submitted that the complainant was being victimized due to the internal disputes amongst the Directors of the Company. She further submitted that the Company had allotted the said unit to the complainant for a total sale consideration of Rs.28,51,600/- including PLC & EDC, as the same price was mentioned in the payment plan opted by the complainant, as mentioned in the Buyer Agreement (at page No.61 of the file). It is, no doubt, true that the complainant booked the unit, in question. A bare perusal of the Agreement (Annexure C-3) clearly reveals that unit No.6102 of 1440 sq. ft. was allotted in the project of Opposite Parties No.1 & 2 at Mohali. It is also the admitted fact that the complainant opted for Construction Linked Installment Plan, in which, total price was mentioned as Rs.28,51,600/- (at page No.61 of the file) and the said Agreement was duly signed by the complainant as well as Authorised Signatory of the Company. A bare perusal of Construction Linked Installment Plan, mentioned in the Buyer Agreement, clearly reveals that Basic Sale Price is mentioned as Rs.25,80,000/- and total price was mentioned as Rs.28,51,600/-, which included the PLC & EDC and the said Agreement was duly stamped and signed by the responsible officer of the Company on each and every page of the Agreement. Even the document (Annexure C-5) dated 31.01.2014 was also duly signed by Team Accounts of the Company. It is not understandable that when the Company admitted regarding the booking of the unit, in question and receipt of the amount of Rs.27,70,000/- from the complainant, then how could they deny the execution of Buyer Agreement or issuing of Annexure C-5? It is admitted that the aforesaid disputed documents were signed by Mr.Amit Jain or Team Accounts because the said officials were on reputed post of the Company. It is pertinent to note that the said unit was purchased by the complainant from the Company and not from any individual official of the Company. After receipt of the huge amount from the complainant, the complainant cannot be questioned regarding the authenticity of the documents or the sanctity of the sale price agreed between the parties. The complainant had bought the unit at a price offered by the Company itself. Mr.Amit Jain was one of the Directors of the Company, who had signed the Buyer Agreement on behalf of the Company. It may be stated here that if Mr.Sanjay Jain and Mr.Amit Jain, appointed by the Company, played fraud with the Company then what was the fault of the complainant ? The said documents i.e. Annexures C-3& C-5 issued by the aforesaid official(s) on behalf of the Company and not on his/their personal capacity. This was an internal affair of the Company vis-à-vis its Director who allegedly committed fraud with it (Company). If the aforesaid officials allegedly embezzled the huge amounts of the Company, and defrauded it, then it (Company) can proceed against him/them, for the recovery of amount, by filing a civil suit, and also under the criminal law by lodging an FIR. For their alleged acts of omission and commission, the third parties, cannot suffer. We are of the view that once the sale price of the said unit, in question, has already been settled between the parties, the Company cannot again refix the sale price and demanded such huge amount from the complainant. So, the objection taken by Counsel for Opposite Parties No.1 & 2 regarding the authenticity of the documents (Annexures C-3 & C-5) has no force, at all, and the same stands rejected.
11. With regard to complicated questions are involved in this case and request of Opposite Parties No.1 & 2 that the complaint be relegated to Civil Court is concerned, it is, no doubt, true that the complainant booked the unit in the project of Opposite Parties No.1 & 2, for which, Buyer Agreement was executed between the parties, which was signed by Sh.Amit Jain, Authorised Signatory of the Company. However, Counsel for Opposite Parties No.1 & 2 stated that the said person was unauthorized to sign the said Agreement. He further submitted that because of fraud committed by the employees of the Company with it, a criminal case against them was lodged and the construction work suffered. It may be stated here, that receipt of Rs.27,70,000/-, by Opposite Parties No.1 & 2 has been admitted. Further, if there was any dispute between Opposite Parties No.1 & 2 and their employees, and they (employees) allegedly may have played fraud with the Company, then the third parties i.e. the consumers including the complainant were not to suffer. The consumers, while dealing with the Company, did not know as to how internal affairs of the Company were being managed, and the consumer(s)/complainant could not be allowed to suffer for that. Opposite Parties No.1 & 2 had their legal remedy, by initiating proceeding against their employees, under the criminal law. Moreover, it is a simple case of non giving possession of the unit, in question. Therefore, the submission of Counsel for Opposite Parties No.1 & 2, that the complaint be relegated to the Civil Court, being devoid of merit, must fail, and the same stands rejected.
12. The next question, which falls for consideration, is, as to within which period delivery of possession of the unit, was to be given to the complainant. In the instant case, earlier unit no.17702 in Sector 110-111, Mohali was purchased by the complainant, for which, Buyer Agreement was executed between the parties on 13.09.2011. According to the complainant, Opposite Parties No.1 & 2 informed that there was some issues regarding the title of the land, as such, the said unit was cancelled. Thereafter, they allotted another unit No.6102 having similar specifications to the complainant, for which, Buyer Agreement was executed between the parties on 07.07.2012 (Annexure C-3). As per Clause 9 of the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of the Agreement i.e. latest by 06.07.2014 and not more than that.
13. The next question, that falls for consideration, is, as to whether, the construction of unit No.6102 of the complainant was complete in all respects and the same (unit, in question), was ready for delivery of possession to the complainant, by the stipulated date i.e. 06.07.2014. It is, no doubt, true that as per the Agreement, possession of the unit was to be delivered within 24 months from the date of execution of the Agreement (07.07.2012) i.e. latest by 06.07.2014 but not even a single document has been placed on record by Opposite Parties No.1 and 2 that possession of the unit, in question, was offered/delivered to the complainant within the stipulated time frame, as mentioned in the Agreement. So, it is clearly proved that the Company failed to offer/deliver possession of the unit to the complainant within the stipulated period, as mentioned in the Agreement. Now, the plea of Counsel for Opposite Parties No.1 and 2 that construction work was 100% complete since 18.12.2014, as such, they sent reminders/notices i.e. dated 18.12.2014, 29.04.2015, 25.12.2015 & 21.04.2017 (Annexures C-6, C-10, C-12 & C-15) to the complainant to come and take possession of the unit, in question, subject to clearance of outstanding dues but he failed to pay the same. It is pertinent to note that vide payment default notice dated 18.12.2014 (Annexure C-6) sent by Opposite Parties No.1 and 2 to the complainant, vide which, the Company informed that they have completed plastering work of the unit (90% work completion) and demanded an amount of Rs.21,83,494/- for possession of the unit & possession would be handed over with 150-180 days from date of realization of the payment. Thereafter, vide payment default notice dated 29.04.2015 (Annexure C-10), the Company demanded an amount of Rs.11,83,000/- and mentioned that " The possession will be handed over with 150-180 days of realization of the payment." Vide payment default notice dated 25.12.2015 (Annexure C-12), the Company demanded an amount of Rs.11,93,265/- and mentioned that " The possession will be handed over to your good self within 120-150 days of realization of the payments from you." Then vide payment default notice dated 21.04.2017 (Annexure C-15), the Company demanded an amount of Rs.11,05,785/- and mentioned that " The possession will be handed over to your good self within 120-150 days of realization of the payments from you." From all the aforesaid payment default notices, it is clearly proved that the Company increased the period of handing over of possession as and when the said notices were sent, which shows that the unit is not ready for possession. From a bare perusal of the Construction Linked Installment Plan (at page No.61 of the file), it is clear that total consideration of the unit, in question, was Rs.28,51,600/- and it is the admitted fact that the complainant already deposited the amount of Rs.27,70,000/-. It is pertinent to note that when demand of Rs.11,83,000/- was raised by Opposite Parties No.1 & 2 to the complainant then the complainant sent a request to Opposite Party No.3 for payment but Opposite Party No.3 only released an amount of Rs.2,20,000/- against the payment of Rs.11,83,000/- because the construction was not complete to that extent. Had the construction of unit and amenities promised, been complete, as per the Agreement (Annexure C-3), then certainly Opposite Parties No.1 and 2, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed on record, their reports, to prove that factum. They, however, failed to produce the cogent and convincing evidence, to prove that unit was complete, in all respects. On the other hand, it has been baldly admitted by Opposite Parties No.1 and 2, in their written statement that 95% construction of the unit was complete. Even no evidence, in the shape of report(s) of the engineers/architects, was placed on record, to prove the completion of construction. No evidence was also produced on record, by Opposite Parties No.1 and 2, to prove that they had obtained completion and occupation certificates, in respect of the unit from the Competent Authorities. Thus, under these circumstances, it could very well be said that by the stipulated date, possession of the unit was not ready to be delivered to the complainant. Thus, it is held that the possession of unit, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed, despite the fact that hard earned money of Rs.27,70,000/- was deposited by him. It may be stated here that, as per Clause 9 of the Buyer Agreement dated 07.07.2012 (Annexure C-3), the possession of unit, was to be delivered by 06.07.2014, which was never offered by the stipulated time. Even the unit, in question, was not complete in all respects. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held as under:-
"I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest."
Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-
"Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.
Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, under similar circumstances, held as under:-
"I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery".
In view of the above, it is held that since there was a material violation on the part of Opposite Parties No.1 & 2, in not handing over physical possession of the unit, complete in all respects, within the stipulated date, as mentioned in the Agreement, the complainant was at liberty, not to accept the offer made after a long delay.
14. The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.27,70,000/-, as claimed by him. It is the admitted fact that the complainant deposited the amount of Rs.27,70,000/- in respect of the unit, in question. In the present case, Opposite Parties No.1 & 2 failed to offer possession of the unit, in question, to the complainant, complete in all respects, within the stipulated period, as mentioned in the Agreement or refund of the amount, as sought by the 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 & 2, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, Opposite Parties No.1 & 2 are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.
15. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is no doubt true that an amount of Rs.27,70,000/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by Opposite Parties No.1 & 2, for their own benefit. 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. The obligation to refund money received and retained without right implies and carries with it, the said right. 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 is certainly entitled to get refund of the amount deposited by him alongwith interest @9% p.a., from the respective date of deposits.
16. As far as the plea taken by the Counsel for Opposite Parties No.1 & 2, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties No.1 & 2) case, that they were ready with possession of the unit, to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints due to deficiency in service rendered by Opposite Parties No.1 & 2 or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of Opposite Parties No.1 & 2, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by Opposite Parties No.1 & 2, in this regard, has no legs to stand and is accordingly rejected.
17. No other point, was urged, by Counsel for the parties.
18. For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 & 2 are jointly and severally directed as under:-
To refund the amount of Rs.27,70,000/- to the complainant, alongwith interest @9% p.a., from the respective date of deposits onwards.
To pay compensation, in the sum of Rs.1,50,000/-, for causing mental agony and physical harassment, to the complainant.
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 02 (two) months 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 @12% p.a., instead of @9% p.a., from the date of default, and interest @9% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
19. However, it is made clear that, if the complainant in the aforesaid case, has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit(s), it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.
20. The complaint qua Opposite Party No.3 stands dismissed.
21. Certified Copies of this order be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion.
Pronounced.
March 14th, 2019 Sd/- [JUSTICE JASBIR SINGH (RETD.)] [PRESIDENT] Sd/- [RAJESH K. ARYA] MEMBER Sd/- (PADMA PANDEY) MEMBER rb