State Consumer Disputes Redressal Commission
Lakhbir Singh vs M/S Omaxe Chandigarh Extension ... on 10 February, 2021
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 69 of 2018 Date of Institution : 13.02.2018 Date of Decision : 10.02.2021 Lakhbir Singh s/o Sukhdev Singh, resident of Village Dulchi Ke, District Ferozepur, Punjab. ......Complainant V e r s u s M/s Omaxe Chandigarh Extension Developers Private Limited, having Registered Office 10 L.S.C., Kalkaji, New Delhi, through its Managing Director/Directors/Chief Executive Officer. 11nd Address:- M/s Omaxe Chandigarh Extension Developers Private Limited, SCO 143-144, Sector 8-C, Chandigarh, through its Managing Director/Directors/Chief Executive Officer. IIIrd Address:- M/s Omaxe Chandigarh Extension, Site Address: In the revenue Estate of Villages Kansala, Parol, Kartarpur, Rani Majra Takipur Boothgarh, Dhode Majra Rasoolpur and Bhagat Majra in Mullanpur LPA (GMADA) District SAS Nagar (Mullanpur) Punjab, through its Managing Director/Directors/Chief Executive Officer. Rohtash Goyal, Chief Managing Director M/s Omaxe Chandigarh Extension Developers Private Limited, having Regd. Corp. Office 10 L.S.C., Kalkaji, New Delhi. .... Opposite Parties Present through Video Conferencing:- Sh.Sandeep Bhardwaj, Advocate for the complainant. Sh.Munish Gupta, Advocate for the opposite parties. BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS. PADMA PANDEY, MEMBER. MR.RAJESH K. ARYA, MEMBER. JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT This consumer complaint has a chequered history. Earlier this complaint was partly allowed and refund order was passed alongwith compensation and cost of litigation. However, the Hon'ble National Commission vide order dated 09.01.2020, remanded the case, by holding as under:- " Dated : 09 Jan 2020 ORDER
After some arguments, the appeal is disposed of in terms of the following consent order:
1. The appellants are permitted to file the copy of the partial completion certificate dated 28.04.2017 with the State Commission within two weeks from today and to lead evidence to prove that the plot allotted to the complainant is covered under the said part completion certificate. The complainant shall be entitled to lead evidence in rebuttal if he so desires.
2. The appellant shall also be entitled to lead evidence to prove the service of the letter dated 29.04.2017 as well as subsequent letters dated 30.05.2017, 27.06.2017 and 28.07.2017 upon the complainant.
3. The State Commission shall decide the Consumer Complaint afresh after taking additional evidence in terms of this order. The amount which the appellant has deposited in this Commission, shall remain deposited and final order with respect of disbursal of the said amount and interest which may have accrued on. It shall be passed by the State Commission while deciding the complaint afresh in terms of this order.
List on 11.02.2020 before the State Commission.
The State Commission shall decide the complaint afresh within four weeks from today."
Hence, we are hearing this complaint after remand. Infact, the instant complaint has been filed by the complainant seeking refund of the amount paid by him towards purchase of a plot, in the project of the opposite parties launched by them under the name and style-"Omaxe Chandigarh Extension", Mullanpur, LPA (GMADA), District SAS Nagar, Mohali, Punjab. It is the case of the complainant that, in the first instance, against purchase of plot bearing no.47, measuring 301.38 square yards, allotment letter/agreement dated 27.07.2012, Annexure C-6, was executed between the parties and as per Clause 24 (a), the opposite parties committed to deliver possession thereof, within a period of 24 months (18 months plus 6 months grace period) from the date of execution thereof i.e. latest by 26.07.2014, yet, they failed to do so, for dearth of construction and development activities as also necessary approvals/sanctions from the Competent Authorities. Whereas, on the other hand, as per demands raised by the opposite parties, from time to time, the complainant has paid an amount of Rs.59,38,800/- by 25.06.2013 against total sale consideration of Rs.71,62,295.70ps. under time linked payment plan. It has been stated that since, plot no.47 measuring 301.38 square yards was not ready for delivery of possession, as such, the complainant was relocated to a plot measuring 200 square yards and differential amount of Rs.11,79,400/- was refunded to him by the opposite parties. Thereafter, some more amount was received from the complainant towards relocated plot yet, possession thereof was also not delivered to him. Thereafter, he received letter dated 11.09.2014, Annexure C-16, whereby plot no.162-A, measuring 199.13 square yards was allotted in his favour, provisionally. On the other hand, the complainant kept on insisting the opposite parties to execute agreement in respect of the relocated plot but to no avail. Without doing the needful, they raised demand of Rs.1,30,241.57ps. from the complainant vide letter dated 23.05.2015, Annexure C-17. Under those circumstances, the complainant approached the opposite parties with a request to refund the amount paid but he was told that demand letters have been sent to him, to which he replied that since the same have not been received, the same be handed over to him, by hand, but the opposite parties refused to do so. In this manner, neither possession of initially allotted plot nor of the relocated one was delivered to the complainant and he was left in lurch.
By stating that the aforesaid act and conduct of the opposite parties amount to deficiency in providing service and adoption of unfair trade practice, this complaint had been filed by the complainant.
The claim of the complainant was contested by the opposite parties on numerous grounds, inter alia, that the complainant has concealed material facts from this Commission; that he has concealed various letters having been sent to him; that in the face of existence of arbitration clause in the allotment letter/agreement this consumer complaint is not maintainable; that this Commission did not vest with territorial and pecuniary jurisdiction; that he did not fall within the definition of 'consumer', as he has purchased the plot for commercial purposes; that the complaint filed is beyond limitation; that he was defaulter in making payment towards price of the plot in question; that all the demands were raised as per terms and conditions of the allotment letter/application form; and that in case this Commission comes to the conclusion that the complainant is entitled to refund of the amount paid then forfeiture clause will be applicable.
On merits, purchase of plot no.47 in the first instance; execution of agreement in respect of the same wherein as per clause 24 (a) thereof, possession thereof was to be delivered latest by 26.07.2014; non delivery of possession of plot no.47; relocation to plot no.162-A; and issuance of provisional allotment letter in respect of the same; payments made by the complainant as mentioned in the complaint have not been disputed.
It has been stated that the complainant was relocated to plot no.162-A, on the request made by him only as he wanted a smaller plot of 200 square yards and when he was relocated, no protest was ever raised by him; that he has concealed material facts that allotment letter/agreement in respect of relocated plot no.162-A was sent to him alongwith letter dated 27.09.2014, Annexure OP-1; that thereafter valid possession of relocated plot no.162-A with all basic amenities was offered to the complainant vide letter dated 10.02.2017 i.e. within a period of 30 months from the date of provisional allotment thereof, followed by reminders dated 24.03.2017, 29.04.2017, 30.05.2017, 27.06.2017 and 28.07.2017 but he failed to take over the same on making remaining payment; that possession of the plot no.162-A was offered to the complainant on receipt of partial completion certificate; that the complainant can take over possession of plot no.162-A on making payment of remaining amount. While relying upon the unsigned copy of allotment letter/agreement, it has been averred that as per clause 35 thereof, period of possession of 24 months was to be computed by excluding Sundays, Bank Holiday etc. and that since the dispute is with regard to unsigned allotment letter/agreement, as such, this complaint should be relegated to the civil court and that in the cases of immovable property time is not to be considered as essence of the contract. Prayer has been made to dismiss this complaint.
In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those contained in the written version of the opposite parties. Receipt of letter dated 27.09.2014 alongwith copy of agreement and also possession letter dated 10.02.2017 followed by reminders allegedly sent by the opposite parties has been specifically denied.
The parties led evidence in support of their case.
This Commission, after hearing the contesting parties and going through the evidence and record of the case, partly allowed this complaint with costs alongwith connected two complaints and ordered refund of the amount paid alongwith interest, compensation and litigation expenses, vide common order dated 17.10.2018, while holding as under:-
"17. In connected consumer complaint bearing no.69 of 2018 it was vehemently contended by Counsel for the opposite parties that agreement in respect of the relocated plot, purchased by the complainant, was duly sent to him vide letter dated 27.09.2014 Annexure OP-1, yet, the complainant failed to sign the same and send it back to the opposite parties. On the other hand, the complainant has taken a stand that the agreement was never sent to him, for signatures. It may be stated here that the opposite parties have failed to prove, by placing on record any cogent evidence, as to by which mode, the said agreement was sent to the complainant. The opposite parties were required of, to produce on record evidence to prove that the said letter alongwith agreement was actually sent to the complainant, especially when a specific stand has been taken by him that it (agreement) was never sent to him for signatures. Mere placing on record letter dated 27.09.2014, without any evidence in the shape of postal receipt, showing that the said letter alongwith agreement was sent on correct address of the complainant, is of no help to the opposite parties. As such, it is held that agreement, in this case, was never sent to the complainant, for his signatures.
In this case, it is evident from the record that, in the first instance, the complainant had purchased a plot measuring 300 square yards, in the project of the opposite parties, in October 2011, for which he had already paid an amount of Rs.59,38,800/-. As per agreement dated 27.07.2012 executed in respect of the said plot, the opposite parties were liable to deliver possession of the said plot by 26.07.2014. However, it appears that since the opposite parties were not in a position to deliver possession of the said plot, the complainant was relocated to a plot measuring 200 square yards, in the said project, for which affidavit cum undertaking dated 21.04.2014 was received from him, by the opposite parties. The complainant accepted relocation with a hope that he will get possession of the relocated plot shortly but to of no avail. Therefore, even if the contention of the opposite parties to the effect that possession of the plot, in question, was offered to the complainant vide letter dated 10.02.2017 is accepted as correct, yet, the complainant has denied of receiving such letter, even then we are of the considered opinion, that there was a material violation on their part. The complainant has started pouring money out of his pocket for a plot, from October 2011, yet, he was offered possession and that too of the relocated plot, only in February 2017. Under these circumstances, we are of the considered opinion that even if the plea taken by the opposite parties that possession of relocated plot was offered to the complainant in February 2017 is accepted as correct, even then, the complainant was not obliged to take over the same, in view of principle of law laid down by the National Commission, as referred to above.
18...........................
19.............................
20.............................
Consumer Complaint no.69 of 2018. The opposite parties, jointly and severally are directed as under:-
To refund the amount of Rs.50,89,642/-, alongwith interest @12% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment, caused to the complainant, deficiency in providing service and adopting unfair trade practice.
To pay cost of litigation, to the tune of Rs.35,000/- to the complainant.
The payment of awarded amounts (in consumer complaints bearing no.69 of 2018 and 138 of 2018) 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) thereafter shall carry penal interest @15% p.a., from the date of default, and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), respectively, from the date of filing the respective complaints (69 of 2018 and 138 of 2018), till realization. However, it is made clear that, if the complainant(s), in above (69 of 2018 and 138 of 2018) complaints have availed loan facility from any banking or financial institution, for making payment of installments towards the said plot/flat, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them [complainant(s)], respectively."
Feeling aggrieved against the order dated 17.10.2018 passed in this complaint, the opposite parties preferred first appeal no.2222 of 2018 before the Hon'ble National Commission, which was disposed of vide order dated 09.01.2020, in the manner, stated above.
In compliance of the order dated 09.01.2020 passed by the Hon'ble National Commission in FA No.2222 of 2018, the opposite parties moved an application bearing no.MA/226 of 2020 for placing on record Annexures OP-5 to OP-9 i.e. partial completion certificate dated 28.04.2017; order dated 19.02.2020 passed by the Hon'ble National Commission in first appeal no.2222 of 2018; letter dated 10.02.2020 and also letter dated 19.02.2020 having been issued by the GMADA stating therein that plot no.162-A, Part -F is a part of the said certificate. At the same time, application bearing no.227 of 2020 was also moved by the opposite parties for summoning of witness in order to prove that letters dated 29.04.2017, 30.05.2017, 27.06.2017 and 28.07.2017 were duly served upon the complainant. Reply to these applications was also filed by the complainant.
On 25.06.2020, arguments on both the applications were heard and the documents Annexures OP-5 to OP-9 were ordered to be taken on record.
However, since no record of tracking of the aforesaid letters dated 29.04.2017, 30.05.2017, 27.06.2017 and 28.07.2017 was available on the website of the Post Office, as such, the c oncerned Post Offices i.e. Post Office, Sector 8, Chandigarh, Post Office, Sector 9, Chandigarh and Post Office, Mullanpur were directed to produce and submit the record pertaining to the said letters through some responsible officer/official on the next date of hearing. General Post Office, Sector 17, Chandigarh was also directed to submit the information regarding the aforesaid letters. Since as per report submitted by the Sr.Supdt. Post Offices, Chandigarh, Division, to the effect that record with regard to delivery of the letters aforesaid (which was subject matter of the miscellaneous application no.227 of 2020) had already been weeded out and thus, not available, as such, miscellaneous application bearing no.227 of 2020 stood disposed of by this Commission, vide order dated 04.01.2021, having been rendered infructuous. Accordingly, arguments in this case were heard for deciding it afresh, as directed by the Hon'ble National Commission vide order dated 09.01.2020 passed in FA No.2222 of 2018.
First, we will deal with the objection raised by the opposite parties that the complainant did not fall within the definition of 'consumer'. It may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainant has purchased the plot in question to indulge in 'purchase and sale of units/plots' as was held by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainant is a consumer. Mere fact that the complainant is a resident of Ferozepur, Punjab or living in any other house owned by him, is not a ground to shove him out of the definition of consumer. Objection taken in this regard, as such, stands rejected.
Now we will deal with the objection regarding territorial jurisdiction of this Commission, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In this case, it is clearly evident that letter dated 03.02.2012 with regard to invitation for allotment of plot, Annexure C-3; letter dated 21.04.2012, Annexure C-4 with regard to intimation of due installments; emails dated 19.05.2014 Annexure C-10 colly., letter dated 11.09.2014 and 23.05.2015, Annexure C-17 were issued by Chandigarh Offices of the Company i.e. from Regional Office-SCO No.139/140, Sector 8-C Chandigarh/SCO No.143-144, First Floor, Sector 8-C, Chandigarh. These addresses are also found mentioned on all the payment receipts Annexure C-7 colly. dated 24.11.2011, 17.02.2012, 16.05.2012, 16.08.2012 and 25.06.2013, meaning thereby that the company was actually and voluntarily residing and carrying on its business and personally work for gain thereat. As such, objection taken with regard to territorial jurisdiction stands rejected.
As far as objection taken by the opposite parties to the effect that in the face of existence of Arbitration clause in the allotment letter/agreement, jurisdiction of this Commission is barred it may be stated here that this issue has already been dealt with by the larger Bench of the Hon'ble National Commission in a case titled a s Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon'ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon'ble Supreme Court of India, vide order dated 10.12.2018.
Now coming to the objection taken regarding pecuniary jurisdiction it may be stated here that this complaint has been filed under the Consumer Protection Act, 1986, under which, for determining pecuniary jurisdiction, this Commission was required to take into consideration the value of the goods and compensation claimed if any. In the present case, if the total value of the plot in dispute and compensation claimed are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore, respectively. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint filed under CPA 1986. Objection taken in this regard stands rejected.
It is not in dispute that, in the first instance, the complainant had purchased plot no.47 in the project in dispute and vide Clause 24 (a) of the allotment letter/agreement dated 27.07.2012, Annexure C-6, possession thereof was to be delivered within a period of 18 months i.e. by 26.01.2014. However, the opposite parties also made themselves entitled for 6 months grace period i.e. upto 26.07.2014, subject to force majeure circumstances. It is an admitted fact that against plot no.47, the opposite parties had already received an amount of Rs.59,38,800/- from the complainant, till 25.06.2013. However, there is nothing on record that possession of plot no.47 was ever offered to the complainant by the opposite parties by the committed date. The opposite parties have maintained silence in their written reply and did not disclose as to why they could not deliver possession of the plot no.47 to the complainant by the committed date. Under these circumstances, an adverse inference could very well be drawn against the opposite parties that possession of plot no.47 was not delivered by the committed date to the complainant, despite receiving substantial amount referred to above, only because of the reason that development activities were not in existence at the project site where the said plot was located and that they were also not having necessary permissions/approvals with regard to the same. On this count, there was deficiency in providing service on the part of the opposite parties.
Though no justification has been given by the opposite parties, with regard to non delivery of possession of plot no.47, yet, with a view to wriggle out of the situation, it has been submitted by the opposite parties that the complainant surrendered plot no.47, as a result whereof he was relocated to plot no.162-A in the same project. To strengthen their case, with regard to relocation to plot no.162-A, the opposite parties placed reliance on affidavit-cum-undertakings dated 05.03.2014, Annexure C-8 and 21.04.2014 Annexure C-9 submitted by the complainant, wherein it has been stated by him against clause no.5 that he wish to surrender the booking of plot no.47 in the project in dispute. The complainant has further submitted in clause 7 of the said affidavit-cum-undertaking dt. 21.04.2014 Annexure C-9 that the excess amount received by the opposite parties after adjustment of the amount already paid by him be refunded and the remaining amount be adjusted towards a plot measuring 200 square yards.
As such, under above circumstances, the moot question which arises for consideration is as to whether, the complainant was obliged to accept plot no.162-A which was provisionally allotted to him vide letter dated 11.09.2014, Annexure C-16 i.e. after obtaining the aforesaid affidavit-cum-undertakings or not. It is very significant to mention here that we have gone through the contents of the affidavit-cum-undertakings referred to above and found that the complainant has agreed for relocation to plot/unit no.OCE/P3/592 measuring 200 square yards and not for plot no.162-A. This fact is evident from Clause no.7 of the said affidavit-cum-undertaking dated 21.04.2014 Annexure C-9 which is reproduced hereunder:-
"...That I/we have requested the Company to refund me/us Rs.1179400/- out of the said Refundable Amount and to adjust the balance of said Refundable Amount to the credit of Unit No.OCEP/P3/592 in Plot, Project Omaxe Chandigarh Extn. Measuring 200 Sq. Yds. built in _____Project booked in the name of LAKHBIR SINGH..."
Thus, it is crystal clear that when possession of plot no.47 purchased by the complainant was not delivered to the complainant, he submitted undertaking-cum-affidavits to relocate him to plot no. OCEP/P3/592 with a hope that he will get possession of the said plot. It was on the basis of these affidavit-cum-undertakings that application form Annexure C-12 was got filled from the complainant. However, thereafter, in a very draconian manner, instead of allotting plot no.OCEP/P3/592, the opposite parties unilaterally allotted plot no.162-A, measuring 199.13 square yards i.e. the plot for which no consent was ever received from the complainant. Since, there is not even a single document in the shape of any agreement/affidavit on record, wherefrom it could be revealed that the complainant ever gave his consent for relocation to plot no.162-A instead of plot no.OCEP/P3/592, as such, there was no novation of the contract for relocation to plot no.162-A. Novation of contract if any could be said to be with regard to relocation to plot no. OCEP/P3/592 only and not for 162-A aforesaid. Novation means extinguishment of the terms of an earlier contract and the creation of another between new persons at least one of whom was a stranger to the original contract and it is essential for the principle of novation to apply that there must be the mutual consent of all parties concerned.
However, in the present case, there is no novation of contract in the eyes of law, with regard to allotment of plot no.162-A in place of plot no.47 or plot no. OCEP/P3/592. Section 62 of the Act, 1872 provides that if the parties to the contract, agreed to substitute the new contract, or to rescind or alter it, only then, the original contract need not to be performed. Thus, the section provides that the original contract need not be performed in the following cases:-
where the parties to the contract agree to substitute a new contract for it, technically called "novation".
where the parties to a contract agree to rescind it;
where the parties to a contact agree to alter it.
After going through the material available on record, this Commission has found that in the present case also, the complainant has never given his consent for novation or substitution or alteration of the terms and conditions of the affidavit-cum-undertakings referred to above executed by him for his relocation to plot no. OCEP/P3/592. Thus, there has been no novation of the contract. Rather, it has been established from the letters, referred to above, that the act and conduct of the opposite party with regard to relocation to plot no.162-A was unilateral. As such, it can very well be said that the opposite parties indulged into unfair trade practice and being in dominating position relocated the complainant against his consent and forced him to make remaining payment, which act needs to be deprecated.
To defeat the case of the complainant, reliance has also been placed by the opposite parties on letter dated 27.09.2014, (at page 118 of the paper book) to say that allotment letter/agreement in respect of the relocated plot no.162-A was sent to the complainant for signatures but he failed to return the same, as such, terms and conditions thereof were binding upon. It has been further submitted that thereafter possession of the said relocated plot no.162-A was offered vide letter dated 10.02.2017 followed by letters dated 24.03.2017, 29.04.2017, 30.05.2017, 27.06.2017 and 28.07.2017, yet, the complainant failed to acknowledge the same and did not come forward. However, the complainant in his rejoinder and also written arguments filed at the time of adjudication of this complaint on earlier occasion had denied receipt of the said letters and the stand taken by him has been reiterated now also. It is very significant to add here that though, as held above, that in the absence of consent of the complainant, the opposite parties could not have relocated the complainant from plot no. OCEP/P3/592 to plot no.162-A and also he was not obliged to go for execution of agreement in respect thereof, even then we are going to decide these questions in terms of order dated 09.01.2020 passed by the Hon'ble National Commission in first appeal no.2222 of 2018.
First coming to the letter dated 27.09.2014, whereby the opposite parties allegedly sent buyers agreement for signatures of the complainant in respect of plot no.162-A, it is reiterated that the opposite parties failed to prove on record as to by which mode the said letter alongwith agreement was sent to the complainant. There is no reference of letter dated 27.09.2014 in the order dated 09.01.2020 passed by the Hon'ble National Commission in FA No.2222 of 2018. It appears that the opposite parties ignored to challenge the said stand regarding delivery of letter dated 27.09.2014 before the Hon'ble National Commission and that was why no order in that regard has been passed by it in the order dated 09.01.2020. There is nothing on record that the order dated 09.01.2020 has been challenged by the opposite parties by way of filing any review before the Hon'ble National Commission or appeal before the Hon'ble Supreme Court of India. Under these circumstances, in the absence of any documentary evidence in that regard, it is held that letter dated 27.09.2014 alongwith copy of agreement was never sent to the complainant.
Now coming to the delivery of letters dated 29.04.2017, 30.05.2017, 27.06.2017 and 28.07.2017, it may be stated here that receipt of the said letters was also disputed by the complainant at the time of hearing the complaint when order dated 17.10.2018 had been passed by this Commission and it was on that ground that this complaint had been partly allowed in favour of the complainant vide order dated 17.10.2018, which stood challenged by the opposite parties by way of filing first appeal no.2222 of 2018 before the Hon'ble National Commission, wherein order dated 09.01.2020 has been passed. Perusal of order dated 09.01.2020 reveals that the case has been remanded back to this Commission for deciding afresh after taking additional evidence to be provided by the opposite parties i.e. the proof of service of the letters aforesaid upon the complainant. Thus, vide order dated 09.01.2020, the Hon'ble National Commission shifted the onus upon the opposite parties to prove their case, by way of leading evidence, that the said letters were ever served upon the complainant. Admittedly, thereafter, the opposite parties moved an application bearing no.227 of 2020 for summoning of witness of Postal Authorities to prove that the said letters were duly served upon the complainant or not. However, number of opportunities were available with the opposite parties to prove so and apart from that this Commission also took pain to assist them by way of sending number of letters to the concerned Postal Officers including the Sr. Superintendent Post Office, Chandigarh Division to prove the delivery of letters in dispute upon the complainant by the opposite parties but, ultimately, delivery of the said letters could not be proved, as the record with regard to the same had been weeded out, as reported by the Postal Authorities. The fact remained that the opposite parties failed to lead evidence to prove the service of the letters in dispute. Had the opposite parties diligent enough, they would have initiated such exercise, during pendency of this complaint, when the complainant had denied receipt of those letters, by way of filing rejoinder whereafter order dated 17.10.2018 had been passed by this Commission but they miserably failed to do so. Even no objections were filed to the rejoinder filed by the complainant on this count at-least. Had such exercise of moving application for proof of delivery of the letters in dispute, been carried out by the opposite parties in the year 2017/2018 itself, it would have been easier for them to prove their case regarding delivery/non-delivery of the said letters but they failed to do so, for the reasons best known to them. Under these circumstances, in the absence of any evidence to prove that the service of the letters in dispute to the complainant, it is held that the same were never delivered to him and as such no benefit can be given to the opposite parties in that regard.
Furthermore, even if for the sake of arguments, it is assumed (though not proved by the opposite parties) that the possession so offered by the opposite parties to the complainant in respect of alternative plot no.162-A was genuine, even then he was not obliged to take over the same, in view of observation made by the Hon'ble National Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, wherein it was held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot and is entitled to seek refund of amount paid. Similar observations were made by the Hon'ble National Commission in Syed Nizam Ali Vs. Guruprasad, Revision Petition No. 463 of 2016, decided on 29the Feb 2016. Relevant part of the said order is reproduced hereunder:-
"The contention of the Counsel for the Revision Petitioner that awarding 15% interest is excessive also cannot be sustained as the District Forum had awarded this interest only by way of damages and did not award any amount towards compensation. This Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment. "
Under above circumstances, it is held that the complainant was not obliged to take over possession of alternative plot bearing no.162-A, even if for the sake of arguments, it is presumed to be genuine one. Thus, the fact as to whether plot no.162-A falls within the area for which partial completion certificate aforesaid has been issued by GMADA or not, is of no use to the opposite parties, as far as the present case is concerned. However, without going deeply into this issue, we have been consistently holding that mere obtaining partial completion certificate, in the absence of final complete certificate is of no use to a builder. In none of the Acts/ Rules/Regulations like PARP etc. which are applicable to the projects located in Punjab, the Competent Authorities have given immunity to the builders/developers from obtaining final completion certificate in respect of a project, before offering possession of units/plots therein to the prospective buyers.
At the same time, it is also held that fault, if any, was on the part of the opposite parties, as explained above, and in those circumstances, if the complainant did not pay remaining paltry amount towards miscellaneous charges, demanded by the opposite parties vide the letters aforesaid, especially, when receipt thereof has been disputed by the complainant and delivery thereof has also not been proved upon him, he cannot be termed as defaulter and as such no amount can be ordered to be forfeited out of the deposited one. Objection taken by the opposite parties in this regard being devoid of merit is rejected.
As far as objection taken to the effect that this Commission is not vested with the power to adjudicate this complaint, being the dispute of an immovable property and only the Civil Court is competent to do so, it may be stated here that in the present case, the opposite parties were legally bound to deliver possession of plot no.47 or of plot no. OCEP/P3/592, which they miserably failed to do so, despite the fact that almost entire sale consideration stood received by them from the complainant, except the miscellaneous charges; therefore, the nature of such transaction is covered by the expression 'service'. Our this view is supported by the principle of law laid down in Narne Construction P. Ltd., etc. etc. Vs. Union of India and Ors. Etc., (supra) II (2012) CPJ 4 (SC) and Haryana Agricultural Marketing Board cases (supra). Relevant part of Haryana Agricultural Marketing Board cases (supra) is reproduced hereunder:-
".......We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms "consumer" and "service" under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :
"5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):
"...when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act...."
Furthermore, because it is an undisputed fact that the opposite parties neither delivered possession of the plot no.47 or of relocated one (OCEP/P3/592) nor executed buyers in respect of the plot no. OCEP/P3/592, despite the fact that affidavit cum-undertakings with regard to relocation to the same (OCEP/P3/592) were obtained from the complainant, as such, it can very well be said that there is a denial of service to the complainant on the part of the opposite parties, for which he was at liberty to avail legal remedy by way of filing this consumer complaint. Our this view is supported by the principle of law laid down in Lucknow Development Authority Vs. M.K.Gupta, Civil Appeal No.6237 of 1990, decided on 5.11.1993, wherein the Hon'ble Supreme Court held that where the developer is at fault in not delivering possession of a property, the act so amounts to denial of service, and consumer complaint is maintainable before the Consumer Fora. Under above circumstances, it is therefore held that the complainant is entitled to get refund of amount paid alongwith interest and compensation.
As far as objection taken to the effect that the complaint is time barred, it may be stated here that since possession of plot no. OCEP/P3/592 has not been offered to the complainant till date, as such, there is a continuing cause of action in his favour to file this complaint, 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), wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer. Furthermore, even if two years are counted from 10.02.2017, when the opposite parties have allegedly offered possession of plot no.162-A (though not proved and not binding upon the complainant), this complaint having been filed on 13.02.2018, is well within limitation. Objection taken in this regard, as such, stands rejected.
Now, we will deal with the question, as to what rate of interest should be awarded to the complainant, while ordering refund of amount paid. It may be stated here that compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. The party concerned in refund cases is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot but he is deprived of same; he is deprived of the benefit of escalation of the price of that flat/plot; and also he would have to take out more money from his pocket for beating the escalation in price, for buying a new flat/plot and as such, compensation to be granted by way of interest on the deposited amount in such cases would necessarily have to be higher. Our this view is supported by the principle of law laid down by the Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 wherein it was held that in a case where money is being simply returned, the purchaser is suffering a loss in as much as he had deposited the money in the hope of getting a flat/plot and therefore, he has been deprived of the benefit of escalation of the price. The compensation in such cases, therefore, would necessarily have to be higher.
Furthermore, a similar question, as to what rate of interest should be granted, while ordering refund of the deposited amount, in case, the builder fails to deliver actual physical possession of residential units/plots, by the stipulated date, fell for determination before the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon`ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Under similar circumstances, the Hon'ble National Commission also, in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019 and Anil Kumar Jain & Anr Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23rd Dec 2019, awarded interest @12% p.a. to the complainants, on the amounts to be refunded to them from the respective dates of deposits. In the present case also, if we grant interest @12% p.a. on the amount to be refunded to the complainant, that will meet the ends of justice.
For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally are directed as under:-
To refund the amount of Rs.50,89,642/- to the complainant, alongwith interest @12% p.a. from the respective dates of deposit onwards, without deducting any TDS To pay compensation for causing mental agony and harassment and also cost of litigation, in lumpsum, to the tune of Rs.1,85,000/- to the complainant.
It is evident from the contents of order dated 09.01.2020 passed in first appeal bearing no.2222 of 2018 that the opposite parties have already deposited the decreetal amount in terms of earlier order passed by this Commission and the said amount is still lying with the Hon'ble National Commission and at the same time, it has directed this Commission to pass appropriate order regarding disbursal thereof. As such, the complainant is at liberty to withdraw the said amount alongwith interest accrued thereon by moving application with the Hon'ble National Commission, as per the required procedure. In case, the amount deposited falls less than the decreetal amount, the opposite parties shall be liable to pay the differential amount to the complainant within a period of 30 days from the date of receipt of a certified copy of this order, failing which the due amount payable, if any, shall attract penal interest @15% p.a. from the due dates when the same had been received till realization, over and above the payment of compensation and litigation expenses.
However, it is further made clear that in case the complainant has availed loan facility from any Bank/Financial Institution, for making payment towards price of the plot in question, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
10.02.2021 Sd/-
[RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Sd/-
(RAJESH K. ARYA) MEMBER Rg.