State Consumer Disputes Redressal Commission
Neeru Tak vs Ggp Buildtech on 28 August, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Consumer Complaint No.362 of 2016
Date of institution : 18.11.2016
Reserved on : 10.08.2017
Date of decision : 28.08.2017
Neeru Tak wife of Shri Yogeshwar Kumar Tak, resident of House
No.3562, Sector 71, Opp. Ivy Hospital, Mohali.
.......Complainant
Versus
1.M/s GGP Buildtech Pvt. Ltd., Village Santemajra, Sector 115, Kharar-Landran Highway, Mohali, Punjab through its Managing Director.
2. Mr. Ajay Gupta
3. Mr. Rajesh Kumar Both No.2 and 3 Directors of GGP Buildtech Pvt. Ltd., 402, Sector 127, Shivalik Enclave, Kharar, Mohali.
........Opposite Parties Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President Present:-
For the complainant : Shri Jagdish Sharma, Advocate. For the opposite parties: Shri Yashpal Gupta, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainant, Neeru Tak, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, Consumer Complaint No.362 of 2016 2 "the C.P. Act") for the issuance of following directions to the opposite parties:-
i) to refund a sum of ₹22,03,610/- along with interest at the rate of 18%;
ii) to pay a sum of ₹1,00,000/- as rent w.e.f. April 2016 till November 2016 along with interest at the rate of 18%;
iii) to pay interest of ₹5,00,000/-, as compensation for mental agony, harassment, deficiency in service and unfair trade practice; and
iv) to pay ₹55,000/- as litigation expenses.
Facts of the Complaint:
2. Brief facts, stated in the complaint, are that opposite party No.1 is a Company and opposite parties Nos.2 and 3 are its Directors, who are managing day to day affairs of the Company. As such, all the opposite parties are jointly and severally liable for their acts and conduct. It is averred that the complainant influenced by the advertisements made by the opposite party-Company in newspapers approached them for purchase of a Flat in its project "Noor Homes"
situated at Village Santemajra, District Mohali and booked Flat No.132, Ground Floor, Block No.1 having saleable area of approximately 1140 square feet. The Agreement dated 22.12.2015, Ex.C-1, was reduced into writing between the parties and Allotment Letter of the same date Ex.C-2 was issued. In clause 4(a) of the terms of the Buyer's Agreement i.e. Delivery of Possession, it was specifically mentioned that the possession date of the flat will be on or before 31.3.2016 but it can be extended for further six months, Consumer Complaint No.362 of 2016 3 which shall be confirmed date for possession. It is also averred in clause 4(b) of the Buyer's Agreement that the Developer i.e. opposite parties would give notice to the purchaser about the date on which the delivery would be given of the apartment to the complainant. It is further averred that the maximum period for delivery of possession was upto 30th of September 2016 but by that time the complainant did not receive any notice, although the complainant had already deposited an amount of ₹19,71,588/- to the opposite parties till September 2016 against the total sale price of the Flat to the tune of ₹29,90,000/-. The complainant through her husband; namely, Yogeshwar Kumar Tak, has also raised a loan of ₹26,01,400/- from India Bulls Housing Finance Limited, out of which ₹16,43,500/- was released to the Bank Account No.2435005500000035 on 31.12.2015 in the Punjab National Bank. A tripartite agreement was also executed between the complainant, opposite parties and the India Bulls Housing Finance Company, Ex.C-3. The complainant visited the spot along with her husband many a times but she was told that the project was likely to be completed in a short period but till date of filing of the complaint i.e. 18.11.2016 it was not complete. There was no development at the spot and only some structures were standing. The complainant had been residing at a rent of ₹12,500/- per month and paying interest on the loan amount. As such, she has suffered mental agony, stress and depression. The Rent Agreement has been annexed on record as Ex.C-4 and the Statement of Loan Account as Ex.C-5. Since the complainant was not delivered possession within the stipulated Consumer Complaint No.362 of 2016 4 period, therefore, she has lost her faith on the opposite parties. The opposite parties are delaying the delivery of possession; as a result of which the complainant has also claimed interest @18% on the amount deposited and ₹5,00,000/- as compensation, besides the litigation costs.
Defence of the Opposite Parties:
3. Upon notice the opposite parties appeared and filed their joint written statement taking preliminary objections that the complainant has not come to the Commission with clean hands. The complainant was asked several times to take possession of the Flat after paying the balance amount as per the terms of the Agreement. It is further averred in the reply that the complainant failed to comply with her part and as such, possession could not be delivered to her. Reference to the photographs of the Flat in question annexed on record as Ex.OP-2 to Ex.OP-14 and Ex.OP-1/1 and Ex.OP-1/2, has been made. No other document has been annexed except the resolution of the Company authorizing Ajay Gupta and Rajesh Kumar to file the reply and contest the case on behalf of the Company. Para No.6 of the complaint has been admitted in parawise reply on merits whereby it is mentioned that the complaint need no reply to the said para. The said para is with regard to the payments made by the complainant. The other averments have been denied merely saying that the complaint was filed prematurely. There is specific admission with regard to the payments already made by the complainant. The complainant is indulging in the business of buying and selling the properties and purchased the flat Consumer Complaint No.362 of 2016 5 in question for resale/commercial purpose. As there is major slump in real estate market and sensing no profit in the flat, the complainant tried to exploit the opposite parties by filing this vague complaint to get refund of her payment paid to the opposite parties knowing that there is no refund policy of the Company. There is recession in the real estate market and the complainant has not paid the instalments as per the schedule because she wanted to sell the flat on premium but due to recession in the market, the complainant failed to do so. It becomes clear that the complainant booked the flat in question only for commercial purpose and for gaining profits. As such, the complainant does not fall within the definition of 'consumer' as defined in Section 2(1)(d) of the C.P. Act. The dispute involved in the present complaint is not a 'consumer dispute' and does not fall within the ambit of the provisions of the C.P. Act. Moreover, in view of Article 4 Clause (c) and Article 11 of the Buyer's Agreement dated 22.12.2015, all or any dispute arising out or touching upon or in relation to the terms of the agreement or dispute of similar nature and the respective rights and obligations of the parties shall be settled amicably by mutual discussion, failing which same shall be settled through Arbitration. This Commission has got no pecuniary jurisdiction. Denying all other allegations made in the complaint a prayer for dismissal of the complaint has been made. Evidence of the Parties:
4. For proving the allegations made in the complaint, the complainant proved on record her affidavit as Ex.CA and documents Ex.C-1 to Ex.C-3, Ex.C3-A, Ex.C-4 to Ex.C-7, Ex.C-7A and Ex.C-8 to Consumer Complaint No.362 of 2016 6 Ex.C-10. On the other hand, the opposite parties proved on record the affidavit of their Director-cum-Authorised Person, Ajay Gupta as Ex.OP-A and document Ex.OP-1 besides photographs Ex.OP-2 to Ex.OP-14 and Ex.OP-1/1 and Ex.OP-1/2.
5. I have carefully gone through the averments of both the sides, evidence produced by them in support of their respective averments and have heard learned counsel on their behalf.
Contentions of the Parties:
6. It was vehemently contended by the learned counsel for the complainant that the complainant had paid the amount of ₹19,71,588/- to the opposite parties on various dates till September 2016 and out of which sum of ₹16,43,500/- was paid after obtaining housing loan from India Bulls Housing Finance Limited on which the complainant had already paid interest from February 2016 to November 2016 i.e. amounting to ₹1,60,110/-. The total sale consideration of the flat in question was ₹29,90,000/-. In this manner the complainant has already paid sufficient amount but there was no progress in the project. The possession of the Flat, complete in all respects, was to be delivered to the complainant by 30.9.2016. Resultantly the remaining amount was not paid by the complainant. The complainant never received any communication regarding the progress in the project as well as handing over the possession thereof. Rather, whenever the complainant visited the site along with her husband, the same was found incomplete and only structures were standing there and there was no development at the site at all. The photographs of the site annexed on the records do Consumer Complaint No.362 of 2016 7 not reveal the true picture nor the same indicate about the flat allotted to the complainant. Such like sample flats have already been constructed at the site of the Project, which are only for attraction. Even the number of the Flat etc. has not been mentioned in these photographs to show that these are of the same flat. No Completion Certificate has been placed on the record, which is mandatory before handing over the possession. Further payments have been stopped as the Payment Plan was construction linked plan and there was no construction at the site. It was further contended that by virtue of the facts, proved on the record by the oral and documentary evidence of the complainant, she is entitled to the refund of the amount, so paid by her for purchasing the Flat, from the opposite parties and they are also liable to pay interest on that amount; besides the compensation for the mental agony, harassment and financial loss suffered by her on account of the acts on their part as detailed in the complaint and in collecting the huge amount, without developing the project and having failed to deliver the possession of the Flat within the stipulated period.
7. Per contra it was vehemently contended by the learned counsel for the opposite parties that the complainant is a defaulter in making the payment from the very beginning and has not paid the amounts in time. So, she is not entitled to the relief claimed in the complaint. Learned counsel made reference to the photographs Ex.OP-1/1, Ex.OP-1/2 and Ex.OP-2 to Ex.OP-14 to show the state of affairs at the spot. It was further contended that the flat of the complainant is complete in all respects. Rather in one of the Consumer Complaint No.362 of 2016 8 Flats one person along with his family is residing. It was further submitted that the complaint be dismissed since the complainant herself is a defaulter and has not adhered to the Schedule of Payment and made reference to para no.2(c) of the Buyer's Agreement. The complainant has no cause of action to file the present complaint. Since the complainant purchased the property for the purpose of investment, therefore, she does not fall in the definition of 'consumer' as enshrined under Section 2(1)(d) of the C.P. Act. This Commission has no pecuniary jurisdiction and this Commission does not have the jurisdiction to entertain the present complaint as it has been specifically stated/mentioned in clause no.6(c) of the Buyer's Agreement that all the disputes shall be referred to an Arbitrator to be appointed as per provisions of Arbitration and Conciliation Act, 1996. There is no deficiency in service or adoption of unfair trade practice on the part of opposite parties. A prayer for dismissal of the complaint has been made. Consideration of Contentions:
8. So far as the contention of the learned counsel for the opposite parties with regard to the existence of clause 6(c) in the Buyer's Agreement is concerned, the remedy available under the C.P. Act is an additional remedy and the matter is no more res-integra. Hon'ble Supreme Court in Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6 SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233 and in Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a Consumer Complaint No.362 of 2016 9 conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.
9. Recently, it was held by the Hon'ble National Commission, in Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016, as under:-
"In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon'ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments Consumer Complaint No.362 of 2016 10 in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986."
10. Hon'ble National Commission in a latest decision rendered in Consumer Case No.701 of 2015 (AFTAB SINGH v. EMAAR MGF LAND LIMITED & ANR.) decided on 13.7.2017 after discussing a number of judgments of Hon'ble Supreme Court and various provisions of the Arbitration and Conciliation Act, 1996 has observed as under:-
"3. In view of afore-going discussion, we arrive at the following conclusions: (i) the disputes which are to be adjudicated and governed by statutory enactments, established for specific public purpose to sub-serve a particular public policy are not arbitrable; (ii) there are vast domains of the legal universe that are non-arbitrable and kept at a distance from private dispute resolution; (iii) the subject amendment was meant for a completely different purpose, leaving status quo ante unaltered and subsequently reaffirmed and restated by the Hon'ble Consumer Complaint No.362 of 2016 11 Supreme Courtl (iv) Sectiion 2(3) of the Arbitration Act recognizes schemes under other legislations that make disputes non-arbitrable and (iv) in light of the overall architecture of the Consumer Act and Court evolved jurisprudence, amended sub-section (1) of Section 8 cannot be construed as a mandate to the Consumer Forums, constituted under the Act, to refer the parties to Arbitration in terms of the Arbitration Agreement.
4. Consequently, we unhesitatingly reject the arguments on behalf of the Builder and hold that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act."
In view of the above, objection raised by Counsel for the opposite parties that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.
11. So far as the contention of the learned counsel for the opposite parties that the complainant does not fall under the definition of 'consumer' as she has invested the amount in the Flat for earning profits and as such, the same was booked/purchased for commercial purpose, is concerned, there is nothing on record that the Consumer Complaint No.362 of 2016 12 complainant is a property dealer and deal in the sale and purchase of property, on regular basis, and as such, the Flat in question was purchased by her 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 objections raised by the learned counsel for the opposite parties, mere bald assertion i.e. simply saying that the complainant being investor, did not fall within the definition of consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, it was held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi 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 Hon'ble National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only this, recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the Hon'ble National Commission negated the plea taken by the builder, while holding as under:-
"In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to Consumer Complaint No.362 of 2016 13 make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house.
The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of 'consumer', as defined under Section 2(1)(d) of the C.P. Act. Such an objection, taken by the opposite parties, in their written reply, therefore, being devoid of merit, is rejected. No other point has been raised before us.
12. Clause 2(c) of the Buyer's Agreement, Ex.C-1, which refers to Payment Plan, reads as under:-
"(c) Payment Plan:
i. The Purchaser (s) agrees to pay the balance amount of the consideration to the developer as per the payment plan. If, the Purchaser (s) fails to pay the balance consideration or in the event of any delay in payment of any instalment and or other charges, in accordance with the payment plan, the Purchaser(s) shall be liable to pay interest (and the purchaser Consumer Complaint No.362 of 2016 14 agreed for the same) on the delayed payment calculated from the due date of outstanding amount @ 18% per annum of the outstanding amount compounded quarterly (hereinafter collectively referred to as 'the Penal Interest') along with restoration charges amounting of Rs.2,000/-. The schedule of the payment is as under:-
PAYMENT PLAN AMOUNT
AT THE TIME OF BOOKING Rs.2,99,000/-
22.12.2015
On completion of foundation Rs.5,98,000/- + service tax
work
On casting of Ground Floor Rs.4,48,500/- + service tax
roof slab
On casting of First Floor roof Rs.4,48,500/- + service tax
slab
On casting of Second Floor Rs.4,48,500/- + service tax
roof slab
On casting of Third Floor roof Rs.2,99,000/- + service tax
slab
On Flooring Rs.2,99,000/- + service tax
On offer of possession Rs.1,49,500/- + service tax
A perusal of the Payment Plan, reproduced above, reveals that the same was construction linked payment plan and the payments were to be made firstly on completion of foundation work, on casting of Ground Floor roof slab, First Floor Roof Slab, Second Floor Roof Slab, Third Floor Roof Slab, Flooring and remaining amount was to be paid at the time of offer of possession. As per clause 4(a) Delivery of Possession of the Buyer's Agreement Ex.C-1, the stipulated date for the delivery of possession of the flat is mentioned as 31.3.2016. Further extension of 6 months is permissible i.e. upto 30.9.2016 and this is the last confirmed date for delivery of possession of the flat in question. Admittedly the complaint has Consumer Complaint No.362 of 2016 15 been filed on 18.11.2016 after the possession was not delivered to the complainant. The fact remains that the complainant has already paid an amount of ₹19,71,588/- against the total price of the Flat i.e. ₹29,90,000/-. Major amount towards the price of the Flat in question has been paid by the complainant after taking loan from India Bulls Housing Finance Limited amounting to ₹16,43,500/- and a tripartite agreement has also been executed between the complainant, opposite parties and that Finance Company. Certainly there is no document on record that there is any progress in the construction and the opposite parties have given any intimation to the complainant about the same. Rather the complainant visited the Project site on various occasions as mentioned in the complaint and found that the construction was not progressing. Only structures were standing at the site. This means that the complainant was not required to pay the other instalments as the progress in construction was not being carried out by the opposite parties. Even the entire stipulated time for delivering the possession of the flat, complete in all respects, has already expired. Resultantly the complainant apprehended that the Project will not be completed in near future and stopped making payments. Though the stand has been taken by the opposite parties that the flat in question is ready for delivery of possession but firstly at any stage of the construction no notice was given and secondly, even no notice regarding handing over of possession was given to the complainant as is required as per clause 4(b) of the Buyer's Agreement. The relevant portion of which reads as under:-Consumer Complaint No.362 of 2016 16
"4(b) Notice For Possession:-
That the developer shall give notice to the purchaser about the date on which the developer would be giving the possession of apartment to the purchaser only in case all the payments due from the purchaser have been received on time by the developer. "
As per this clause the Developer is required to give notice to the complainant about the date on which the developer would be giving possession of the Flat. The facts are not in dispute that no notice with regard to the progress and the status of the Project has been given to the complainant nor any Certificate has been annexed on the file indicating that the Project is complete and the Flat is ready for delivery of possession.
13. So far as the photographs are concerned, in one of the photographs one person is standing there and even the car is standing there. It may be a sample flat, which had already been constructed at the site. No such photograph has been annexed, which may indicate development at the site of the Project. Therefore, it is held that there is no progress at the Project site and the opposite parties have failed to construct the Flat and deliver the same to the complainant within the stipulated period in-spite of payment of substantial amount by her.
14. The consumers are not to suffer at the hands of such like developers and the Foras under the C.P. Act are to come to their rescue. The bona fides of the parties are also to be seen. The payment of the substantial amount towards the price of the Flat in Consumer Complaint No.362 of 2016 17 time shows that the complainant bona fidely required the Flat for her use and her family's use and was interested in getting the possession thereof.
15. This act on the part of the opposite parties in collecting huge amounts from the prospective buyers under the guise of developing the area and to give the possession of the constructed flats by the stipulated date and not constructing those flats at all and to use the huge money, so collected by them, clearly amounts to unfair trade practice. On account of that unfair trade practice, the complainant has certainly faced harassment and agony, as her hope to have her own flat stood shattered. Had the opposite parties not adopted such an unfair trade practice, she might have invested this money with some other developer and might have got the flat by now.
16. As per Section 9 of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA"), every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the apartments/flats/plots, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. There is no evidence or pleading on record on behalf of the opposite parties in this respect. As such, the opposite parties violated Section 9 of the PAPRA.
17. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where Consumer Complaint No.362 of 2016 18 that amount had been going. The opposite parties are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the agreement.
18. Admittedly the amount of ₹19,71,588/- has been paid by the complainant to the opposite parties towards the price of the flat. Buyer's Agreement was executed between the complainant and the opposite parties on 22.12.2015, Ex.C-1 and as per the same, the possession of the flat was to be delivered to the complainant upto 31.3.2016 and after extension of period of 6 months upto 30.9.2016. The present complaint was filed on 18.11.2016. However, till then the opposite parties failed to deliver the possession of the fully constructed flat to the complainant. The complainant cannot be made to wait for indefinite period for delivery of possession of the flat. Moreover, the opposite parties are not in a position to deliver the physical possession of the flat in dispute to the complainant in near future.
19. The Consumer Protection Act came into being in the year 1986. It is one of the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not an iota of evidence led by the opposite parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainant has made payment of substantial amount to the opposite parties with the hope to get the possession of the flat in a reasonable time. The circumstances Consumer Complaint No.362 of 2016 19 clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and construction of flats in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested her money with the opposite parties, she would have invested the same elsewhere. There is escalation in the price of construction also. The complainant has suffered loss, as discussed above. The builder is under obligation to deliver the possession of the flat in question within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the flat booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that it had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainant to book the flat, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainant is a deposit held by the opposite parties in trust of complainant and it should be used for the purpose of constructing the flats, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainant for Consumer Complaint No.362 of 2016 20 failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainant, are also required to be taken into consideration for awarding compensation. In addition to that she is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by her on account of the betrayal by the opposite parties in shattering her hope of getting the flat by waiting for all this period. Non-delivery of possession of the flat, complete in all respects, certainly amounts to deficiency in service and adoption of unfair trade practice on the part of the opposite parties. The complainant has been able to prove the same by way of evidence on record to which the opposite parties failed to rebut by cogent evidence.
20. Under Section 12 of the PAPRA read with Rule 17 of the Rules framed thereunder if the amount is to be refunded, it is to be refunded along with interest at the rate of 12% per annum.
21. Now, coming to the quantum of the compensation and other reliefs to which the complainant is entitled to. There is categorical evidence on record that the complainant has obtained housing loan through her husband from India Bulls Finance Private Ltd., out of which ₹16,43,500/- was deposited in the account of the opposite Consumer Complaint No.362 of 2016 21 parties in Punjab National Bank. The interest paid by the complainant on the said amount of ₹16,43,500/- from February 2016 to November 2016 to the said Finance Company has been calculated at ₹1,60,110/-. Besides this, the complainant paid ₹2,00,000/- at the time of booking of the flat and ₹1,00,000/- through cheque. Furthermore, the complainant has been residing in rented accommodation and has been paying rent at the rate of ₹12,500/- per month as is clear from the Rent Agreement dated 7.1.2016, which is placed on the record as Ex.C-4. In the facts and circumstances of the case I am of the view that the complainant is entitled to the refund of the entire amount of ₹19,71,588/-. She is entitled to the interest paid by her to India Bulls Finance Private Ltd. on the amount of ₹16,43,500/- for the period from February 2016 to November 2016 amounting to ₹1,60,110/- and thereafter she is entitled to interest at the rate of 12% per annum on the amount of ₹16,43,500/- with effect from 1.12.2016 till the date of payment. She is also entitled to interest on the other amounts i.e. ₹3,28,088/- (₹19,71,588/- minus ₹16,43,500/-) paid by her to the opposite parties at the rate of 12% per annum from the different dates of deposits till the date of payment. She is also entitled to compensation of ₹2,00,000/- on account of mental agony, stress and depression. However, she is not entitled to any rent as there is no provision in the Buyer's Agreement for the payment of the rent if there is delay in delivering the possession.
22. In view of the above discussion, the complaint is allowed and the following directions are issued to the opposite parties:- Consumer Complaint No.362 of 2016 22
i) to refund the amount of ₹19,71,588/- to the complainant paid by her to them i.e. (₹16,43,500/- by raising a loan from India Bulls Private Limited and ₹3,28,088/- at her own) on different dates;
ii) to pay interest amounting to ₹1,60,110/- paid by the complainant to India Bulls Finance Private Limited on the loan amount of ₹16,43,500/- for the period from February 2016 to November 2016;
iii) to further pay interest on this amount of ₹16,43,500/- at the rate of 12% per annum with effect from 1.12.2016 till the date of actual payment;
iv) to pay interest on the other amount i.e. ₹3,28,088/-
(₹19,71,588/- minus ₹16,43,500/-) paid by the complainant to the opposite parties at the rate of 12% per annum from the dates of different deposits till the date of actual payment;
v) to pay ₹2,00,000/-, as compensation on account of
mental agony, stress and depression; and
vi) to pay ₹22,000/- as litigation expenses.
23. The opposite parties shall make compliance of this order within two months from the date of receipt of the certified copy of this order.
24. If the opposite parties fail to comply with the order in the complaint within the stipulated period, then the amount of compensation awarded, vide this order shall carry interest at the rate of 12% per annum from the date of this order till realization.
25. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT August 28, 2017 Bansal Consumer Complaint No.362 of 2016 23