State Consumer Disputes Redressal Commission
1. Jyoti Sood @ Jyotish Lata Sood vs 1. Parsvnath Developers Limited, on 12 September, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 82 of 2014 Date of Institution : 15.07.2014 Date of Decision : 12/09/2014 1. Jyoti Sood @ Jyotish Lata Sood, wife of Sh. Prem Pal Sood, resident of House No.3101, Sector 32-D, Chandigarh. 2. Prem Pal Sood son of Sh. Pyare Lal Sood, resident of House No.3101, Sector 32-D, Chandigarh. Both through their Special Power of Attorney Holder namely Sh. Satish Kumar Saini, son of Sh. Vidhya Parkash Saini, resident of House No.3101, Sectot 32-D, Chandigarh. Complainants V e r s u s 1. Parsvnath Developers Limited, SCO No.1, First Floor, Sector-26, Madhya Marg, Chandigarh, through its Managing Director. 2. Chairman Housing Board, 8, Jan Marg, Sector-9, Chandigarh, through its Chairman. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS.
PADMA PANDEY, MEMBER Argued by: Sh.
Neeraj Sobti, Advocate for the complainants.
Sh. Aftab Singh, Advocate for Opposite Party No.1 Sh. Vishal Sodhi, Advocate for Opposite Party No.2.
JUSTICE SHAM SUNDER (RETD.), PRESIDENT The facts, in brief, are that Opposite Party No.1, had widely advertised its project, in the name and style of Parsvnath Prideasia, Rajiv Gandhi Chandigarh Technology Park, Chandigarh, envisaging the sale of residential flats, to be developed, and constructed by them, on the land of Opposite Party No.2. Allured by such advertisements, the complainants, with an intention to have a residential unit, applied for the allotment of the same (residential unit), consisting of 4 bedrooms, B Category, measuring 3700 square feet super area, vide application form dated 18.09.2007. An amount of Rs.12, 58,000/- (infact Rs.12,85,000/-), as earnest money, was also paid by the complainants, towards the said unit. The complainants opted for construction linked plan. It was stated that though the complainants, had applied for the unit, in Category B, yet the Opposite Parties, unilaterally allotted, unit No.B15-PH4, in Category A, in Parsvnath Prideasia, Rajiv Gandhi Chandigarh Technology Park, Chandigarh, vide allotment letter bearing No.PDL/CHB/07/B13. Later on, on the request of the complainants, they were allotted unit No.B21-PH-3, vide letter dated 05.12.2007. It was further stated that, thereafter, the complainants made payments, and, as such, by 22.12.2007, the total amount of Rs.70,28,750/-, was paid to the Opposite Parties, towards the price of the said unit.
2. It was further stated that the Flat Buyer Agreement dated 04.12.2008, Annexure C-6, was executed amongst the parties. As per Clause 9(a) of the said Agreement (at page 37 of the file), the construction of the residential units and other related infrastructure, was likely to be completed, within a period of 36 months, from 06.10.2006, the date of signing the Development Agreement. It was further stated that the complainants visited the site, where the said units were to be constructed, and came to know that the Opposite Parties, failed to construct the same (units) and even the foundation was not laid till 02.09.2009.
3. It was further stated that the complainants visited the Opposite Parties, a number of times, requested them, to refund the amount, paid by them, towards part payment of the unit, in question, alongwith interest, as there was no progress of the project, and the same was delayed for unlimited period, but to no avail. Finally, on 24.06.2014, the Opposite Parties, intimated the complainants that the project, in question, in which they were allotted flat, could not be started, due to litigation. It was further stated that, to the utter surprise of the complainants, a letter dated 07.07.2014, was received from Opposite Party No.2, alongwith demand draft/pay order no.788934 dated 07.07.2014, in the sum of Rs.21,08,625/-, on account of refund of his 30% share of the principal amount, deposited by them (complainants), and that too without any interest. However, the balance amount of Rs.49,20,125/-, had not been refunded to the complainants. It was further stated that, thereafter, the complainants, made numerous visits to Opposite Party No.1, for refund of the balance amount of Rs.49,20,125/-, alongwith interest, but to no avail. They also requested Opposite Party No.2 to pay interest, on the amount of Rs.21,08,625/-, but to no avail.
4. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, claiming refund of the amount of Rs.49,20,125/-, alongwith interest @12% P.A., from the respective dates of deposits, till realization; interest @12% p.a., on the amount of Rs.21,08,625/-, from the respective dates of deposits, till the same was refunded; compensation to the tune of Rs.10 lacs, for mental agony and physical harassment; and Rs.55,000/-, as litigation costs.
5. Opposite Party No.1, in its written version, pleaded that the complaint was barred by time. The factum that the complainants were allotted the unit, in question, with super area of 3700 square feet, in the aforesaid project, was admitted. It was also admitted that the Flat Buyer Agreement Annexure C-6, was executed amongst the complainants, and the Opposite Parties, on 04.12.2008. It was also admitted that the complainants deposited a sum of Rs.70,28,750/-, towards part price of the unit, in question. It was, however, stated that after the execution of the Development Agreement dated 06.10.2006, possession of 123.79 acres of land, claimed to be unencumbered, was handed over to Opposite Party No.1, by the Chandigarh Housing Board/Opposite Party No.2. It was further stated that when Opposite Party No.1, was fencing the land, possession whereof was delivered to it, for the development of project, a dispute arose, as the Haryana Government, claimed ownership, with regard to a part of the same. It was further stated that when that dispute was resolved, an alternative piece of land, in lieu of the disputed portion of land, was given to Opposite Party No.1, but it was discovered to be the land of the Forest Department. It was further stated that, as per Article 2.2.2 of the Development Agreement, period of 36 months, for the completion of project, could only be counted, from the date of delivery of possession of the entire unencumbered land, and not earlier to the same. It was further stated that, as per Article 4.2.1. of the Development Agreement dated 06.10.2006, executed between the Developer and the Chandigarh Housing Board, it was agreed to between them that 30% of the revenues received in the Escrow Account, were to be transferred to a designated bank of Opposite Party No.2, and correspondingly the balance 70% was to be transferred to the account of the Developer. Consequently, the liability of the Developer, and the Chandigarh Housing Board, in case of refund, was corresponding to the above agreed to arrangement of receipts also. It was further stated that, in the event of cancellation of allotment, 5% of the basic price was to be forfeited. It was further stated that since the complainants never paid the entire sale consideration of the unit, in question, there was no question of payment of compensation, on account of non-construction, to them. It was denied that Opposite Party No.1, was deficient, in rendering service, and indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. Opposite Party No.2, in his written version, pleaded that the complaint was barred by time. It was admitted that the complainants were allotted the unit, in question, in Parsvnath Prideasia, vide the allotment letter aforesaid. It was also admitted that the Flat Buyer Agreement dated 04.12.2008, Annexure C-6, was executed, amongst the complainants and the Opposite Parties. It was also admitted that the complainants deposited Rs.70,28,750/-, as per the payment plan. It was stated that, as per Clause 9(e) of the Flat Buyer Agreement dated 04.12.2008, Annexure C-6, Opposite Party No.2, Chandigarh Housing Board, was to only provide the land for the project and the Developer (Opposite Party No.1,) was to undertake the development of the said project, and, as such it (Developer), was solely responsible for all quality parameters, timely delivery of residential units, all claims/liabilities and compensation towards defects/delay etc. It was further stated that since as admitted by the complainants, in their complaint, Opposite Party No.2, had already refunded Rs.21,08,625/-being 30% of his share of the principal amount, vide demand draft/pay order demand draft/pay order no.788934 dated 07.07.2014, neither he was liable to pay any interest thereon, nor compensation, for mental agony and physical harassment . It was further stated that neither there was any deficiency, in rendering service, nor indulgence into unfair trade practice, on the part of Opposite Party No.2. A prayer was made for dismissal of the complaint qua Opposite Party No.2.
7. The complainants, in support of their case, led evidence, by way of affidavit of their Special Power of Attorney Holder, Sh.Satish Kumar Saini, alongwith which, a number of documents were attached.
8. Opposite Party No.1, filed the affidavit of Tej Pal Chauhan, General Manager (Lands and Legal), M/s Parsvnath Developers Limited, Parsvnath Metro Tower, Near Shahdara Metro Station, Shahdara, Delhi-110032, by way of evidence, alongwith which documents were attached.
9. Opposite Party No.2, in support of his case, filed the affidavit of Mrs. Mandeep Kaur, HCS, Secretary Chandigarh Housing Board.
10. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
11. The Counsel for the complainants, submitted that the complainants, applied for the allotment of a flat, and, finally, in the circumstances, explained above, they were allotted unit No.B21-PH-3, in the project of Parsvnath Prideasia, Rajiv Gandhi Chandigarh Technology Park, Chandigarh. He further submitted that the complainants deposited total amount of Rs.70,28,750/-, with the Opposite Parties, upto 22.12.2007. He further submitted that, as per the Flat Buyer Agreement dated 04.12.2008, Annexure C-6, the construction of residential units, was likely to be completed within 36 months of signing the Development Agreement dated 06.10.2006, between the Developer and the Chandigarh Housing Board. He further submitted that though a sum of Rs.70,28,750/-, was deposited by the complainants, towards part payment of the price of flat, yet not even a brick was laid, at the spot, what to speak of construction of flats. He further submitted that there was no breach of the Agreement, on the part of the complainants, yet, neither the project was developed nor the question of delivery of possession of the flat arose. He further submitted that the complainants, therefore, could not wait for an indefinite period, and were entitled to the refund of amount, deposited by them, with interest, as also compensation for mental agony and physical harassment. He further submitted that the Opposite Parties, could not deduct 5% of the basic price, from the amount, deposited by the complainants, in the event of refund of the same, as the payment was made as per the payment schedule and there was no default, on their part. He further submitted that Opposite Party No.2 only refunded Rs.21,08,625/-, without any interest and compensation. He further submitted that the Opposite Parties, were certainly deficient, in rendering service, to the complainants, by neither refunding the entire amount, deposited by them, nor paying them the compensation, and they also indulged into unfair trade practice.
12. On the other hand, the Counsel for Opposite Party No.1, submitted that since the Flat Buyer Agreement was executed amongst the parties on 04.12.2008, and possession of the said unit, was to be handed over to the complainants by 06.10.2009, as per the Development Agreement dated 06.10.2006, executed between the Opposite Parties, the complaint having been filed by the them (complainants), on 15.07.2014, was barred by limitation. He further submitted that, no doubt, the Development Agreement, referred to above, was executed between the Opposite Parties, as a result whereof, possession of the entire unencumbered land for the project was to be provided by Opposite Party No.2. He further submitted that since Opposite Party No.2, did not hand over possession of the entire unencumbered chunk of land, required for the development of project, the construction could not be undertaken. He further submitted that the complainants were only entitled to the refund of amount, after deduction of 5% of the basic price, as per Clause 5(a) of the Flat Buyer Agreement dated 04.12.2008, Annexure C-6. He further submitted that according to Article 4.2.1. of the Development Agreement, as well as Clause 5 of the Escrow Agreement, the liability of the Developer and the Chandigarh Housing Board, in case of refund, was in the ratio of 70:30. He further submitted that though a period of 36 months, was provided, under Article 2.2.1 of the Development Agreement dated 06.10.2006, and under Clause 9(a) of the Flat Buyer Agreement dated 04.12.2008, Annexure C-6, for the completion of construction, yet the same was to commence, only after the possession of the entire unencumbered land, had been handed over to Opposite Party No.1, for the development of project, by Opposite Party No.2, but he (Opposite Party No.2) failed to do so. He further submitted that, under these circumstances, Opposite Party No.1, was neither deficient, in rendering service, nor it indulged into unfair trade practice nor it was liable to pay compensation.
13. The Counsel for Opposite Party No.2, submitted that, since as per the Escrow Agreement, Opposite Party No.2, has already refunded his 30% share of the principal amount, to the tune of Rs.21,08,625/-, vide demand draft/pay order no.788934 dated 07.07.2014, and the remaining amount was to be paid by Opposite Party No.1, neither he was liable to pay any interest thereon, nor compensation, for mental agony and physical harassment to the complainants.
14. The first question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. It may be stated here, that, no doubt, the Flat Buyer Agreement, in respect of the said unit, was executed amongst the parties, on 04.12.2008, yet, neither the physical possession thereof, by the promised date i.e. 06.10.2009, was delivered to the complainants, as per the terms and conditions of the Agreement, referred to above, nor the entire amount deposited by them, was refunded to them nor the interest was paid by the Opposite Parties, before filing the complaint. There was, thus, a continuing cause of action, in favour of the complainants, to file the complaint. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), the complainant applied for a plot, in the year 1992, on the basis of inducement, made in the advertisements of the petitioner, knowing fully well that the land, in question, was under
litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon`ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
15. The second question, that arises for consideration, is, as to within which period, the construction of the residential units, was likely to be completed. There is, no dispute, about the factum that the complainants applied for the allotment of a flat, and they were allotted the same, in the manner explained above. They deposited the amount of Rs.70,28,750/-, towards part price of the flat, according to the payment plan, as admitted by the Opposite Parties. Clause 9(a) of the the Flat Buyer Agreement dated 04.12.2008, Annexure C-6, referred to above, which is relevant, for answering the question, posed, at the outset of this paragraph, reads as under ;
Construction of the residential units is likely to be completed within a period of thirty six (36) months of the signing of Development Agreement i.e. 06.10.2006 between the Developer and CHB and/or as may be extended in terms of the Development Agreement shall be subject to force majeure and circumstances beyond the control of the Developer, and any restrains, restrictions from any Courts/ authorities. The delay in grant of environmental clearances beyond 12 months of the signing of the Development Agreement shall not be counted towards the said period of 36 months.
16. The plain reading of Clause 9(a) of the Flat Buyer Agreement, extracted above, clearly goes to reveal, that the construction of the residential units, was to be completed, within a period of thirty six months of signing the Development Agreement dated 06.10.2006. The time could be extended, in terms of the Development Agreement, dated 06.10.2006, subject to force majeure, and the circumstances beyond the control of the Developer. Opposite Party No.1, admitted, in its written reply, that, in the first instance, possession of the entire project land, claimed to be unencumbered, was handed over to it, by Opposite Party No.2, and when the fencing was being done, the Haryana Govt. raised a dispute, with regard to the ownership of a portion of the same. It is the case of Opposite Party No.1, that when that dispute was resolved, and, in lieu of the disputed portion of the land, possession of some other land, was given to it, the same was discovered to be that of the Forest Department. No evidence was, however, produced by Opposite Party No.1, in this regard. Even if, it is assumed, for the sake of arguments, that the ownership of a small portion of the land was disputed, that did not mean that the construction of residential units, could not be undertaken, on the remaining land, which constituted the major portion of the project land, and with regard whereto, there was no dispute, whatsoever. Therefore, it was not, on account of the circumstances, beyond the control of the Developer, that the delay was caused, in the construction of residential units. The Developer also could not take shelter of force majeure clause. No document was produced by Opposite Party No.1, that any restriction was imposed by any Court or Authority, upon it, as a result whereof, it could not raise construction of residential units, in time. Even, it was not proved, that there was delay, in the grant of environmental clearance. Opposite Party No.1, without first confirming the clear title of the entire land, over which the project, was to be developed, started booking the flats, and allotting the same, to the prospective buyers, by fleecing them of huge amounts, and making misleading statement, that the construction of residential units, will be completed within 36 months from 06.10.2006. Even, long after the expiry of the stipulated period, not even a brick was laid, at the site, what to speak of raising construction. Opposite Party No.1, thus, indulged into unfair trade practice. It is, therefore, held that the construction of the residential units was to be completed within 36 months from 06.10.2006 i.e. by 06.10.2009.
17. The third question, that arises for consideration, is, as to whether, the complainants are entitled to the refund of amount, deposited by them, with interest or not? Clause 9(d) of the Flat Buyer Agreement, which is relevant, to answer this question, reads as under;
9(d) If as a result of any rules or directions of the Government or if any competent authority delays, withholds, denies the grant of necessary approvals for the Project, or if due to any force majeure conditions, the Developer is unable to deliver the unit to the Buyer, the Developer and CHB shall be liable to refund to the Buyer the amounts received from the Buyer with interest at the SBI Term Deposit Rate as applicable on the date of refund.
18. The complainants deposited the amount towards part payment of the price of flat, in the hope of getting its possession, within a period of 36 months from 06.10.2006, but they found that there was no development, at the site, and even a single brick, had not been laid, at the spot, what to speak of construction of flats, and delivery of possession thereof, to the buyers. In these circumstances, the complainants could not wait for an indefinite period. The only option with the complainants, in such circumstances, was to ask for the refund of amount. They approached the Opposite Parties, and requested for refund of the deposited amount. The plain reading of Clause 9(d) extracted above, reveals that if the Developer, for, whatever the reasons may be, fails to deliver the possession of residential unit to the buyers, the Developer and the Chandigarh Housing Board, shall be liable to refund the amounts, received from the buyers, with interest, at the SBI Term Deposit Rate, as applicable, on the date of refund. The Opposite Parties were, thus, deficient, in rendering service, by neither delivering possession of the flat, within the stipulated time, nor refunding the amount immediately, with interest, as provided under Clause 9(d) of the Agreement, referred to above.
19. It may be stated here that 'Interest' in general terms is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. In its narrow sense, 'interest' is understood to mean the amount, which one has contracted to pay for use of borrowed money. In whatever category 'interest' in a particular case may be put, it is a consideration paid either for the use of money or for forbearance in demanding it, after it has fallen due, and thus, it is a charge for the use or forbearance of money. In the instant case, as per Clause 9(d) extracted above, as stated above, in case, the project is abandoned or the construction could not be carried out, on account of certain reasons, then in that event, refund of the amount was to be made at the SBI rate of interest. Since, the project has not taken off at all, the question of offering the possession by 06.10.2009, did not at all arise, it was the duty of the Opposite Parties, to offer the refund of amount to the complainants, the moment the stipulated date, for the delivery of possession expired. The Opposite Parties, however, did not make any offer, despite the fact that the project had not taken off, and no construction of the flats, had taken place. The Opposite Parties, thus, utilized the money, deposited by the complainants, for a long time. The Opposite Parties were, thus, earning handsome returns, on the amount, deposited by the complainants, either by depositing the same, in the Bank, or by investing the same, in some other projects. Had the amount been returned to the complainants immediately after the stipulated date, when the Opposite Parties were unable to deliver possession of the flats, they (complainants) would have either deposited the same, in some Bank and earned handsome returns or invested the same, in some business, resulting into handsome income, to them. The complainants were, thus, deprived of their money, illegally and arbitrarily retained by the Opposite Parties, and, as such, they (complainants) were entitled to interest, on the amount deposited, from the respective dates of deposits, till the refund was made, as per Clause 9(d) of the Flat Buyer Agreement dated 04.12.2008, Annexure C-6. Since Opposite Party No.2 has already refunded Rs.21,08,625/-, being 30% of the principal amount, on 07.07.2014 vide demand draft/pay order no.788934 dated 07.07.2014 to the complainants, he is liable to pay interest, from the respective dates of deposits till that date (07.07.2014) at the SBI term rate interest, according to Clause 9(d) of the Flat Buyer Agreement dated 04.12.2008, Annexure C-6. Opposite Party No.1, is held liable to refund the amount of Rs.49,20,125/-, i.e. Rs.70,28,750/-, minus (-) Rs.21,08,625/-, to the complainants, with interest at the SBI term deposit rate, as per Clause 9(d) of the Agreement, referred to above. By not refunding the amount with interest, immediately after 06.10.2009, the Opposite Parties were deficient, in rendering service and also adopted unfair trade practice.
20. Coming to the submission of the Counsel of Opposite Party No.1, that the complainants were only entitled to the refund of the remaining amount, deposited by them, after deduction of 5% of the basic price of the flat, it may be stated here that such an argument, advanced by the Counsel for Opposite Party No.1, is misconceived. Clause 5(a) of the aforesaid Agreement dated 04.12.2008, reads as under ;
5(a)Timely payment of the instalments/ amounts due shall be of the essence of this Agreement. If payment is not made within the period stipulated and/or the Buyer commits breach of any of the terms and conditions of this Agreement, then this Agreement shall be liable to be cancelled. In the eventuality of cancellation, earnest money being 5% of the basic price would be forfeited and the balance, if any, would be refundable without interest. However, the sellers may allow the revival of the allotment of the unit (subject to its availability) in the name of the Buyer on payment of revival charges amounting to 10% of earnest money.
21. The plain reading of Clause 5(a) extracted above, clearly goes to show that admittedly the payment of installments/amounts due, shall be the essence of the Agreement, and if the payment, was not made, within the stipulated period or the buyer committed breach of any of the terms and conditions of the Agreement, the allotment shall be liable to be cancelled and the amount would be refunded, after deduction of 5% of the basic price. The question arises, as to whether, there was default, in the payment of installments, or of any other term and condition of the Agreement, aforesaid, on the part of the complainants, or not? It was proved, that the payment of installments was made by the complainants, from time to time, as and when the same fell due. There was no delay, in making payment of the part price of flat, through installments, on the part of the complainants. Since, after the expiry of period of 36 months from 06.10.2006, not even a single brick, had been laid, the complainants were not required to deposit the amount of remaining installments. The complainants had, thus, asked for the refund of amount. There was also no breach of any other terms and conditions of the Agreement, referred to above, on the part of the complainants. As such, the provisions of Clause 5(a), extracted above, relating to the deduction of 5% amount of the basic price, could not be invoked. The submission of the Counsel for Opposite Party No.1, in this regard, being without merit, must fail, and the same stands rejected.
22. The next question, that arises for consideration, is, as to whether, the complainants are entitled to compensation, for not handing over possession to them, as per the terms and conditions of the Flat Buyer Agreement dated 04.12.2008, Annexure C-6, referred to above, and for deficiency in service and indulgence into unfair trade practice, as also causing physical harassment and mental agony, by the Opposite Parties to them (complainants) or not? Clause 9 (c) of the Agreement, referred to above, at page 37 of the file, which is relevant for answering the question, reads as under :
9(c) In case of possession of the built up area is not offered to the Buyer within a period of 36 months or extended period as stipulated in sub-clause (a) above the Buyer shall be entitled to receive from Developer compensation @ Rs.107.60 per sq.mtr (Rs.10/- per sq.ft) of the super area of the unit per month and to no other compensation of any kind. In case the Buyer fails to clear his account and take possession of the unit within 30 days of offer, the Buyer shall be liable to pay to the Developer holding charges @ 107.60 per sq.mtr. (Rs.10/- per sq.ft) of the super area of the unit per month in addition to the liability to pay interest to the sellers and other consequences of default in payment.
23.
The possession of the flat was not offered, to the buyers, within a period of 36 months from 06.10.2006. As stated above, even till date, not even a single brick, has been laid, at the spot. In these circumstances, as per Clause 9 (c) of the aforesaid Agreement, the complainants became entitled to compensation @107.60 per sq.mtr (Rs.10/- per sq.ft.) of the super area of the unit, per month, only. No doubt, the Act has a wide reach and the Commission has Jurisdiction even in the cases of service rendered by the statutory and public authorities. Such authorities become liable to compensate for misfeasance, in public office i.e. an act, which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen. The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. In the instant case, as stated above, possession of the flat, could not be offered to the complainants, by the stipulated date i.e. 06.10.2009, as the project had not taken off, and the construction was not raised. The amount deposited by the complainants was utilized by the Opposite Parties, for a long time. One can really imagine the plight of the complainants, who had deposited the huge amount of Rs.70,28,750/-, in the hope of having a shelter on their head, but were ultimately denied the same, as no construction was raised, by the Opposite Parties. As stated above, it was deficiency, in rendering service, and adoption of unfair trade practice, on the part of the Opposite Parties. Not only this, the complainants also suffered a lot of mental agony and physical harassment. At present, the complainants cannot purchase a similar flat, at the same price, at which, it was allotted to them, by the Opposite Parties, in 2007, on account of escalation in prices of the real estate. For these reasons, the complainants are entitled to compensation. However, on the other hand, the language of Clause 9(c) is unambiguous and clear. The parties executed the Agreement, aforesaid, with eyes wide open, and, thus, they are bound by the terms and conditions of the same. No compensation, beyond the terms and conditions, contained in Clause 9 (c) of the aforesaid Agreement, could be claimed by the complainants or granted to them. Thus, the complainants are only entitled to the compensation, as per Clause 9(c) of the Flat Buyer Agreement, and if the same is granted, that would also take care of the mental agony, physical harassment and injustice caused to the complainants, by Opposite Party No.1, deficiency, in rendering service and indulgence into unfair trade practice, attributable to it (Opposite Party No.1). It is, thus, held that the complainants are only entitled to compensation @ Rs107.60 per sq. mtr (Rs.10/- per sq. ft.) of the super area of the unit per month, from 06.10.2009, the last date of completion of the project, till the payment was actually made to them. The submission of the Counsel for Opposite Party No.1, therefore, being devoid of merit stands rejected.
24. No other point, was urged, by the Counsel for the parties.
25. For the reasons, recorded above, the complaint is partly accepted with costs of Rs.5000/-, in the following terms:-
(i) Opposite Party No.1, is directed to refund the amount of Rs.49,20,125/-, (rupees forty nine lacs, twenty thousand, one hundred and twenty five only), to the complainants, as explained above, alongwith interest at the SBI Term Deposit rate, from the respective dates of deposits, till realization, as per Clause 9(d) of the the Flat Buyer Agreement dated 04.12.2008, Annexure C-6.
(ii) Opposite Party No.2, is directed to pay interest to the complainants, at the SBI Term Deposit rate, on the amount of Rs.21,08,625/-, from the respective dates of deposits, till 07.07.2014 (the date when the said amount was refunded to the complainants), as per Clause 9(d) of the Flat Buyer Agreement dated 04.12.2008, Annexure C-6.
(iii) Opposite Party No.1, shall also be liable to pay compensation @ Rs.107.60 per sq. mtr (Rs.10/- per sq.ft) of the super area of the unit, per month, from 06.10.2009, the last date of completion of the project, till actual payment to the complainants is made, as provided by Clause 9 (c) of the Flat Buyer Agreement dated 04.12.2008, Annexure C-6, and indicated hereinbefore.
(iv) The aforesaid directions, shall be complied with, by the Opposite Parties, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which they shall be liable to pay penal interest @ 12% p.a., from the date of default, on the aforesaid payable amounts, besides payment of costs of Rs.5,000/-.
26. Certified Copies of this order be sent to the parties, free of charge.
27. The file be consigned to Record Room, after completion Pronounced.
12.09.2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg.