State Consumer Disputes Redressal Commission
Mr. Mohit Garg vs Altus Space Builders Pvt. Ltd. on 6 January, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 124 of 2020 Date of Institution : 13.07.2020 Date of Decision : 06.01.2022 Mr.Mohit Garg S/o Mr.Ramesh Kumar Garg, resident of House No.1370, Sector 40-B, Chandigarh through Mr.Ramesh Kumar Garg, his duly authorized and appointed registered General Power of Attorney. ...... Complainant V e r s u s Altus Space Builders Private Limited, registered office at SCF-16-17, 1" floor, Phase 10, SAS Nagar Mohali 160062, through Mr. Harpreet Singh, it's authorised signatory. Email id: [email protected] Mr. Harpreet Singh, Director, Altus Space Builders Private Limited, registered office at SCF-22, 1st floor, Phase 10, SAS Nagar Mohali. Email id: [email protected] Mr. Jaswinder Singh, Director, Altus Space Builders Private Limited, registered office at SCF-22, 1st floor, Phase 10, SAS Nagar Mohali. Email id: [email protected] Mr. Mohinder Singh, Director, Altus Space Builders Private Limited, registered office at SCF-22, 1st floor, Phase 10, SAS Nagar Mohali. Email id: [email protected] M/s Ajeet Associates, SCO No.846, Sector 22-A, through Sh. Jatinder Pal Singh, its CEO. Email id: [email protected] and [email protected] .....Opposite Parties BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS. PADMA PANDEY, MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Present through Video Conferencing:-
Sh.Ramnik Gupta, Advocate for the complainant.
Sh.R.S. Pandher, Advocate for opposite parties no.1 to 4 Opposite party no.5 exparte vide order dated 23.11.2020 JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT It is the case of the complainant that in the year 2012, he was pursuing M.Tech. (Mech.) and decided to purchase a commercial showroom site/plot (in short the plot), so that he is able to start his own business of consultancy after completing Ph.D (Mech.), to earn his livelihood. He has filed this complaint alleging that despite the fact that an amount of Rs.56,00,000/- against total sale consideration of Rs.57 lacs, stood received by the opposite parties for the period from 30.05.2012 to 04.06.2012, yet, they failed to offer possession of a plot, measuring 120 sq. yds., located in the their project named Altus Muirwoods Ecocity, New Chandigarh, District SAS Nagar, Punjab, till date, for want of construction and development activities at the project site. It has been stated that agreement to sell, Annexure C-1, was executed on 30.05.2012. It has been averred that when neither buyer's agreement was executed nor plot no. was allocated to the complainant, and at the same time, requests made in the matter to the opposite parties did not yield any result, left with no alternative, he approached the Greater Mohali Area Development Authority (GMADA) and also to the RERA, by way of writing numerous letters starting from 15.02.2016 till 02.03.2020 but to no avail. Even some of the payment receipts were not given by the opposite parties, as a result whereof the complainant approached them in the matter, but to no avail. It has been stated that the opposite parties even did not possess requisite licence and other permissions/sanctions in respect of the project in question and the same was launched in violation of provisions of relevant Acts, Rules etc. applicable to the projects situated in Punjab. It has been stated that deficiency in providing service and adoption of unfair trade practice was writ large on the part of the opposite parties, as they hypothecated the project site with the GMADA, without consent of the allottees including the complainant. When the grievance of the complainant was not redressed, left with no alternative, legal notice dated 13.03.2020, Annexure C-15 was also served upon the opposite parties, but to no avail.
By stating that the aforesaid act and conduct of the opposite parties/builder/developer amount to deficiency in providing service and adoption of unfair trade practice, this complaint has been filed seeking refund of the amount paid, alongwith interest, compensation etc. In the joint written reply filed by opposite parties no.1 to 4, they took numerous objections inter-alia as under:-
that the complainant being investor, did not fall within the definition of consumer, as he alongwith his family members have purchased 18 plots/sites in the project in question;
that the complainant has booked three plots in the project of the opposite parties;
that construction and development work at the project site is at final stages and possession of the said plot will be delivered to the complainant accordingly;
that the complainant failed to make payment as per payment plan;
that only the payments against which receipts have been issued are to be taken into consideration;
that all clearances have been obtained by the company from the competent authorities.
Surprisingly, though agreement in respect of the plot in question has not been executed, yet, by placing reliance on some agreement dated 14.08.2015, Annexure C-23, which is not even placed on record, following further objections have been taken by opposite parties no.1 to 4:-
that in the face of arbitration clause contained in agreement dated 14.08.2015, Annexure C-23, this Commission is not competent to entertain and decide this complaint and the same needs to be relegated to arbitrator;
that for any delay in delivery of possession of the plot, the complainant will be paid delayed compensation as envisaged in clause 5.1 (c) of the agreement dated 14.08.2015, Annexure C-23; and that layout plans in respect of the project in question were submitted with the competent authorities on 07.02.2015, which were approved on 31.03.2015;
On merits, purchase of the plot in question; and that possession thereof has not been delivered to the complainant, has not been disputed by opposite parties no.1 to 4. Prayer has been made to dismiss this complaint.
None put in appearance on behalf of opposite party no.5 as a result whereof, it was proceeded against exparte on 23.11.2020.
In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those contained in written version of opposite parties no.1 to 4.
This Commission has afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavits. In pursuance thereof, the parties have adduced evidence by way of affidavits and produced numerous documents including written arguments.
We have heard the contesting parties and have gone through the entire record of this case, including the written arguments, very carefully.
First, we will deal with the objection taken by opposite parties no.1 to 4 to the effect that the complainant did not fall within the definition of 'consumer', as he alongwith his family members have purchased 18 residential/commercial units in the project of the opposite parties. It may be stated here that the complainant in his complaint has clearly stated that in the year 2012, he was pursuing M.Tech. (Mech.) and the plot in question was purchased by him, so that he is able to start his own business of consultancy, therein, after completing Ph.D (Mech.), to earn his livelihood. The averments made by the complainant in his complaint are supported by his affidavit filed by way of evidence. The definition of a consumer has been defined under Section (2) (1) (d) of the Act, 1986 (under which this complaint has been filed) as under:-
'....Consumer means any person who -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose.
Explanation:- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment...' The explanation to section 2 (1) (d) stipulates that "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. In Tosoh India Pvt. Ltd. (Formerly Lilac Medicare Pvt. Ltd.) Vs. Ram Kumar & 3 Ors., Revision Petition No. 2833 of 2018, decided on 06 Jan 2020, the Larger Bench of the Hon'ble National Commission has laid down following preposition of law, under which, consumer complaints are admissible in respect of commercial units:-
" (a) Only a person engaged in large scale commercial activities for the purpose of making profit is not a consumer;
(b) There should be a direct nexus between the large scale commercial activities in which a person is engaged and the goods purchased or the services hired or availed by him, before he can be excluded from the purview of the term 'consumer'. Therefore any goods purchased or the services hired or availed even by a person carrying on business activities on a large scale for the purpose of making profit will not take him out of the definition of the term 'consumer', if the transaction of purchases of goods or hiring or availing of services is not intended to generate profit through the large scale commercial activity undertaken by him and does not contribute to or form an essential part of his large scale commercial activities.
(c) What is crucial for the purpose of determining whether a person is a 'consumer' or not is the purpose for which the goods were purchased or the services were hired or availed and not the scale of his commercial activities.
(d) The explanation below Section 2(1)(d) of the Consumer Protection Act is clarificatory in nature
(e) A person purchasing goods or hiring or availing services for a consideration, for the purpose of earning his livelihood by way of self-employment is a 'consumer' within the meaning of Section 2(1)(d) of the Consumer Protection Act.
(f) It is not necessary that a person should be working alone in the commercial activity undertaken by him for earning his livelihood and his family members and / or a few employees can assist him in his commercial venture. Such assistance by his family members or by a few employees engaged by him does not convert his business or profession into a commercial activity on a large scale, for the purpose of making profit and therefore, does not exclude him from the purview of the term 'consumer'."
Further, under similar circumstances, in Sunil Kohli and anr. Vs. M/s Purearth Infrastructure Ltd., Civil Appeal nos.9004-9005/2018, decided on 01.10.2019, the Hon'ble Supreme Court while interpreting the legal term of consumer, has categorically observed as under:-
"As laid down by this Court in Laxmi Engineering Works, the explanation to Section 2(1)(d) of the Act clarifies that "in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a 'consumer'". This Court went on to observe that what is "Commercial Purpose" is a question of fact to be decided in the facts of each case.
To similar effect are the observations of this Court in Cheema Engineering Services wherein it was observed in para 6 thus:
"6. In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (i) of Section 2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is whether the respondent has been using the aforesaid machine for self-employment? The word "self-employment" is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self- employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but "merely earning livelihood in commercial business", does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood.
'He' includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of all the Tribunals stand set aside. The matter is remitted to the District Forum. The District Forum is directed to record the evidence of the parties and dispose of it in accordance with law within a period of six months from the date of the receipt of this order." The issue therefore is whether the evidence on record is suggestive or indicative of the fact that the premises in question were booked by the complainants with the intention of self-employment or self-use.
The affidavit of evidence as quoted above clearly points that the complainants wanted to dispose of the property in DENMARK and wanted to come down to Delhi to start a business. It is for this purpose that the premises in question were booked. The evidence also discloses that the Complainant no.1 was not employed any more in DENMARK and as a matter of fact, he was serving RED CROSS, a charitable organization. In the circumstances, it cannot be ruled that the case of the Complainants would not come within the definition of "consumer" as defined under the provisions of the Act."
Furthermore, we have gone through the record of the case and found that three residential plots have been purchased by the complainant in his name and the remaining plots/units have been purchased by the family members i.e. mother, father and brother, who are separate legal entities. Thus, if the family members of the complainant have purchased any plot(s)/unit(s) in the project of the opposite parties, in their individual capacity, it is not a ground to shove the complainant out of the purview of the consumer. As far as purchase of three independent residential plots in the name of the complainant is concerned, it may be stated here that the commercial showroom site/plot purchased by him, has no relationship with the said residential plots. Even otherwise, the complainant has clarified this Commission by way of filing rejoinder, as to under which circumstances, he was forced to go for purchase of the said residential plots, reference whereof has been given by opposite parties no.1 to 4 in their written statement. Hence, it is held that the complainant is a consumer as defined under the Act, 1986, under which this complaint has been filed. In this view of the matter, objection taken by opposite parties no.1 to 4, in this regard stands rejected. Consequently, application-bearing no.260 of 2021 filed by opposite parties no.1 to 4 for dismissal of the complaint on this ground, being devoid of merit stands dismissed with no order as to cost and is disposed of accordingly.
The next question that falls for consideration is, as to whether, in the face of existence of Arbitration clause in the agreement aforesaid (though it is not on record as stated above), jurisdiction of this Commission is barred, as has been contended by opposite parties no.1 to 4? It may be stated here that this issue has already been set at rest by the larger Bench of the Hon'ble National Commission in a case titled as 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. Civil appeal bearing No.23512-23513 of 2017 and Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon'ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard stands rejected.
There is no dispute with regard to the fact that the opposite parties were not ready with possession of the plot in question. In the entire written reply filed by opposite parties no.1 to 4, they are still silent as to by which date possession of the said plot can be delivered to the complainant. It has only been stated by them that development works at the project site are at final stages and that they are ready to deliver possession of the plot. Agreement to sell in this case was executed on 30.05.2012. However, it is also not disputed that buyer's agreement has still not been executed between the parties. Under these circumstances, we are of the considered opinion that actual physical possession of the plot in question should have been delivered to the complainant, within a reasonable period of three years from the date of booking i.e. latest by 29.05.2015 (booking date being 30.05.2012). As of now, there has been an inordinate delay of more than 9 years from the date of booking and more than 6 years, if we take reasonable period of three years for delivery of possession. Except bald assertions, not an iota of evidence has been placed on record to prove as to at what stage, construction and development activities have reached at the project site. It is settled law that onus to prove the stage and status of construction and development work at the project is on the builder/developer. It was so said by the Hon'ble National Commission, i n Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that in the present case, not even an iota of evidence has been placed on record by opposite parties no.1 to 4 to prove as to at what stage, construction and development work has reached at the project site. In case, the development/construction activities are being undertaken; and are about to complete or at final stages or the same are completed, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, had been undertaken and completed at the site or not or about to complete, but they failed to do so. There is nothing on record that the opposite parties have obtained completion certificate in respect of the project in question. Mere photographs Annexure OP-1/4 colly. of the project site, in the absence of completion certificate having been obtained from the competent authorities, are of no help to the opposite parties. It has also come to the notice of this Commission that number of units/plots stood hypothecated with the GMADA by the opposite parties. This fact has been endorsed by the GMADA by way of letter dated 07.12.2021, which was sent to this Commission in our response to the query raised regarding hypothecation of units/plots located in the project site by the opposite parties. There is nothing on record that any consent was taken from the allottees or the complainant before hypothecating the units/plots in the said project with GMADA. This act of the opposite parties also amounts to adoption of unfair trade practice.
As per the own admission of the opposite parties, layout plans in respect of the project in question were submitted with the competent authorities on 07.02.2015, which were approved on 31.03.2015. Even environment clearance was also obtained by the opposite parties in the year 2015. The opposite parties have not been able to convince this Commission, as to why they sold the plot in question to the complainant in the year 2012, when they were not in possession of clearances and layout plans were also not approved till 2015. The opposite parties should have obtained all the approvals/sanctions before booking the units/plots in the said project. If the opposite parties chose to accept booking without obtaining necessary clearances in respect of the project in question and also kept on getting the layout plan revised till 2015 despite the fact that the plot in question was booked as far as back in the years 2012, they are to blame to themselves only. The purchaser of the units/plots, who had nothing to do with grant of statutory approvals, cannot be penalized by postponing the possession. Our this view is supported by the observations made by the Hon'ble National Commission in M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17 Dec 2015. Relevant part of the said order reads as under:-
".....As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents. In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA. If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout. The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot....."
The aforesaid admission of opposite parties no.1 to 4 only, in itself is sufficient to prove that money had been collected from the prospective buyers including the complainant starting from 2012 itself, without obtaining statutory approvals/clearances. Collecting money from the innocent buyers and selling the project, without obtaining the required clearances/approvals of the project is an unfair trade practice on the part of the project proponent. It was so said by the Hon'ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads as under:-
"................This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.
It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency............"
It is therefore held that the opposite parties were deficient in providing service and were negligent on this count and in no way can claim immunity out of the said plea.
Furthermore, not an iota of evidence has been placed on record to prove that the company faced any force majeure circumstances, which were beyond its control and resulted into such an inordinate delay, for delivering possession of the plot in question, to the complainant.
Not only as above, record reveals that an amount of Rs.56,00,000/- against total sale consideration of Rs.57 lacs stood received by the opposite parties for the period from 30.05.2012 to 04.06.2012. There is nothing on record that buyers' agreement was executed between the parties. Only agreement to sell dated 30.05.2012 and that too with opposite party no.5 was executed between it and the complainant. However, as stated above, buyer's agreement containing detailed terms and conditions has not been executed between the parties. This act of the opposite parties, in itself, is a gross violation of Section 6 (1) of the PAPR Act, which lays a duty on the project proponent to execute the agreement for sale as per law, after obtaining the maximum sale consideration of 25%. It is apposite here to reproduce the said provision:-
"6. Contents of agreement of sale:- (1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act No. 16 of 1906) ;
Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots.
(2) xxxxxxxxxxxxxxxx..................
(3) xxxxxxxxxxxxxxxxx..................."
The opposite parties were legally bound under law to execute the agreement and to get the same registered under the Registration Act 1908, after obtaining 25% of the sale consideration, but in this case, the said provision has been violated at large. If the opposite parties adopted unfair trade practice and violated the provisions of law with impunity by not getting the buyer's agreement executed, they cannot take any benefit out of their wrong doings. The opposite parties in the present case want to have the cake and eat it too. It clearly shows the high-handedness of the opposite parties towards the poor consumers like the complainant. It is pertinent to mention here that there is no agreement dated 14.08.2015, Annexure C-23 on the record, reliance whereupon has been placed by the opposite parties. In the absence of any such document on record, contentions raised by the opposite parties, while placing reliance thereupon, has no significant value in the eyes of law and are accordingly rejected.
Be that as it may, the fact that there has been an inordinate delay in offering possession of the plot in question to the complainant, which is still continuing, is not in dispute. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date or within a reasonable period from the date of booking, where there is no agreement, is a material violation on the part of a builder and in those circumstances, the purchaser is well within his/her right to seek refund of the amount paid. It was also so said by the Hon'ble National Commission i n Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon'ble Supreme Court of India in the case titled a s Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also i n M/s Fortune Infrastructure Versus Trevor D' Lima & Ors. (2018) 5 SCC 442 . In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that the complainant is not bound to accept the possession of the plot, even if the same is offered at belated stage. We cannot make the complainant to wait for an indefinite period on the whims and fancies of the opposite parties 1 to 4, that they are ready to make payment of compensation for the period of delay, in offering possession of the plot in question. Thus, under these circumstances, if we order refund of the amount paid alongwith interest from the respective dates of deposits, that will meet the ends of justice.
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, against the plot in question. 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/she had deposited the money in the hope of getting a unit/plot but he/she is deprived of same; he is deprived of the benefit of escalation of the price of that unit/plot; and also he would have to take out more money from his pocket for beating the escalation in price, for buying a new unit/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/unit and therefore, he has been deprived of the benefit of escalation of the price and the compensation in such cases, therefore, would necessarily have to be higher. In the instant case also, the hopes of the complainant to have his own plot, wherein he could run his business of consultancy to earn his livelihood have been dashed to the ground.
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 units/plots, by the stipulated date or within reasonable period, 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. 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; 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; and recently in Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021, awarded interest @12% p.a. to the complainants, on the amounts to be refunded to them from the respective dates of deposits. Though, under similar circumstances, this Commission has been granting interest @12% p.a. yet, in the instant case, since the complainant himself has sought interest @9% p.a. (may be because of issue of pecuniary jurisdiction at the time of filing this complaint), as such, it is held that he is entitled to get interest @9% p.a. on the amount to be refunded to him.
As far as objection taken by opposite parties no.1 to 4 to the effect that the complainant defaulted in making payments, against the plot in question; in our considered opinion, this plea is without any evidence. It is on record that against total sale consideration of Rs.57 lacs, an amount of Rs.56,00,000/- stood received by the opposite parties for the period from 30.05.2012 to 04.06.2012. Even otherwise, when there was no progress of construction and development activities at the project site, the company cannot expect the allottees to keep on making payments. If the allottee after making payment of substantial amount stops making payment of remaining small amount due to be paid at the time of possession only, when he/she came to know that the company is not in a position to deliver possession of their respective units/plots, as there will be a huge delay in completing the construction and development activities, he is well within the right to do so, in view of principle of law laid down by the Hon'ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view has also been taken by the Hon'ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development and construction work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. In this view of the matter, plea taken by opposite parties no.1 to 4 being devoid of merit stands rejected.
As far as contention raised by opposite parties no.1 to 4, to the effect that the company is answerable only for the amounts against which payment receipts have been issued, it may be stated here that over and above the amount received from the complainant, against which receipts have been issued by them (opposite parties no.1 to 4), the rest of the following amount(s) received in cash, have also been acknowledged by opposite party no.5/M/s Ajeet Associate, in agreement to sell dated 30.05.2012, as under:-
Rs.15 lacs in cash on 30.05.2012 Rs.5 lacs in cash on 02.06.2012 Rs.8 lacs in cash on 04.06.2012 In this view of the matter, it is held that the objection taken by opposite parties no.1 to 4, to the effect that they are answerable only for the amount paid vide cheques/RTGS, by the complainant, being devoid of merit, stands rejected, especially when it has been proved that over and above the amounts paid through cheques/RTGS, some amounts as mentioned above, have also been received by the opposite parties, in cash, from the complainant.
For the reasons recorded above, this complaint is partly accepted with costs. Opposite parties no.1 to 5, jointly and severally, are directed as under:-
Refund the amount of Rs.56,00,000/- alongwith compensation by way of interest @9% p.a. (as prayed), without deducting any TDS, to the complainant, from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 12% p.a. (9% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
Pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.1,35,000/- to the complainant, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of passing of this order, till realization.
However, it is made clear that, in case, the complainant has raised housing loan from any Bank(s)/financial institution(s), for making payment towards price of plot in question, it shall have the first charge of the said amount due towards the same, if any.
Certified copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
06.01.2022 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Sd/-
(RAJESH K. ARYA) MEMBER Rg.