State Consumer Disputes Redressal Commission
Mohinder Singh Gill vs M/S Ireo Fiveriver Pvt.Ltd. on 12 October, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 852 of 2017 Date of Institution : 19.12.2017 Date of Decision : 12.10.2018 Mohinder Singh Gill son of Sh. Surjan Singh, resident of VPO Kharainti, Tehsil Meham, District Rohtak (Haryana). ......Complainant. V e r s u s 1. M/s IREO Fiveriver Pvt. Ltd., Corporate Office: SCO No.6-8, 1st and 2nd Floors, Sector 9-D, Madhya Marg, Chandigarh - 160009 through its Authorized Signatory Ms. Sunaina Minhas daughter of Major Arbinder Singh. 2. M/s IREO Fiveriver Pvt. Ltd., having its Registered Office at 305, 3rd Floor, kanchan House, Karampura Commercial complex, New Delhi - 110012 through its Authorized Signatory Ms. Sunaina Minhas daughter of Major Arbinder Singh. ...... Opposite Parties. Argued by: Sh. Vikrant Rana, Advocate for the complainant. Sh. Rohit Tanwar, AGM (Legal) of the Opposite Parties. Complaint case No. : 5 of 2018 Date of Institution : 08.01.2018 Date of Decision : 12.10.2018 Randeep Sangwan S/o Sh. Kalyan Singh Sangwan R/o House No.105, Sector-2, Panchkula. ......Complainant. V e r s u s 1. IREO Fiveriver Private Limited through its Managing Director, 305, 3rd Floor, Kanchan House, Karampura Commercial complex, New Delhi - 110015. 2. The Regional Manager, IREO Fiveriver Private Limited, SCO No.6-8, First and Second Floor, Sector 9-D, Madhya Marg, Chandigarh. ...... Opposite Parties. Argued by: Sh. Abhineet Taneja, Advocate for the complainant. Sh. Rohit Tanwar, AGM (Legal) of Opposite Party No.1. Complaints under Section 17 of the Consumer Protection Act, 1986. BEFORE: MRS. PADMA PANDEY, PRESIDING MEMBER.
MR. RAJESH K. ARYA, MEMBER.
PER PADMA PANDEY, PRESIDING MEMBER By this order, we propose to dispose of the aforesaid two consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In both the complaints bearing Nos.852 of 2017 & 5 of 2018, the complainant(s) have sought refund of the deposited amounts alongwith interest, compensation and litigation costs etc.
2. At the time of arguments, on 21.09.2018, it was agreed between the contesting parties, that, in view of above, both these complaints can be disposed of, by passing a consolidated order.
3. To dictate order, facts are being taken from C onsumer Complaint bearing No.852 of 2017 titled as 'Mohinder Singh Gill Vs. M/s IREO Fiveriver Pvt. Ltd. & Anr.'.
4. The facts, in brief, are that the complainant booked one plot no.R-125, measuring 250.59 sq. yards, in the project of the Opposite Parties, under the name and style of 'IREO FIVE-RIVER', Sector-3, 4, 4A, Pinjore-Kalka Urban complex, Panchkula, Haryana, vide application dated 16.09.2010 and he was allotted the same vide provisional allotment letter dated 25.11.2011. The total sale price of the said plot was Rs.62,64,750/- and the complainant, in all, paid an amount of Rs.15,66,200/- to the opposite parties as per the demands raised from time to time. It was further stated that as per the Agreement dated 21.09.2011, the physical possession of the plot was to be offered within 24 months from the date of execution of the agreement. The complainant personally visited the office of the opposite parties and sought clarification about the schedule of completion of the project and handing over of possession of the plot, in question. As there was no significant progress of the project and apprehending lack of commitment and non-completion of project, the complainant vide letter dated 08.08.2016 sought refund of the amount paid from the opposite parties. It was stated that the opposite parties are delaying the promised time of handing over possession, which was due in September 2013 and the completion of the project is still nowhere in sight.
5. 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 complainant, 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, seeking directions to the opposite parties, to refund the amount of Rs.15,66,200/-, alongwith interest @15% p.a., from the dates of deposits till actual realization; pay compensation to the tune of Rs.2,00,000/-, for mental agony and harassment besides litigation expenses.
6. The opposite parties, in their written statement, took up certain preliminary objections, to the effect 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; that the plot, in question, was purchased by the complainant not for personal use, as such, he did not fall within the definition of consumer; that the consumer complaint was not maintainable, as the matter relates to an agreement to sell/purchase of a plot i.e. of immovable property; that the complainant did not buy any goods and there was no promise to provide any service, as alleged; this Commission has got no territorial Jurisdiction, to entertain and decide the complaint, in the face of Clause 36 of the Agreement, whereby, the parties, by way of Agreement, excluded the jurisdiction of all other Courts, except at Panchkula; that compensation under Section 14(1)(d) could be awarded if any loss or injury is suffered by the consumer due to negligence of the opposite parties; that jurisdiction issues be decided as preliminary issues and only thereafter, decision be taken on merits.
7. On merits, while admitting the factual matrix of the case, it was stated that Clause 11 of the agreement has to be read in its entirety and not selectively. It was further further stated that the combined reading of Clause 11 would make it abundantly clear that period of offering possession was to travel beyond 30 months with payment of liquidated damages till the possession is actually offered. It was further stated that only statutory requirement in terms of Haryana Development and Regulation of Urban Areas Act, 1975 is grant of Licence to develop and the said License was granted by the authorities vide Licence No.28 of 2010 on 23.03.2010 to the opposite parties i.e. much prior to the receipt of booking amount from the complainant, which was followed by execution of the agreement. It was further stated that development and construction work at the site could not be commenced till 13.04.2015 on account of unforeseen events and circumstances/imposition of fresh conditions by Government Authorities after execution of the Agreement. It was further stated that these delays relate to obtaining approval of the revised layout plan, necessitated due to revision of Sectoral road circulation plan of Sector 1, 2, 34, 4A & 5.
8. It was further stated that the opposite parties cannot be held guilty of delaying the project. It was further stated that the delay occurred due to time consumed in obtaining various approvals from the Authorities on account of imposition of fresh conditions, which were not part of license or the LOI. It was further stated that before the recommendation of grant of NOC from National Wild Life Board on 14.03.2015, there was no occasion for the opposite parties to commence the development work at site. It was further stated that the development and construction work at the site commenced after 13.04.2015. It was further stated that the opposite parties applied well in time for obtaining various approvals for commencing the work. It was further stated that despite the fact that Wild Life Clearance was granted on 30.10.2009 but later, the condition of obtaining NOC from NBWL was imposed while granting the environment clearance on 15.04.2014. Various NOCs/clearances like Airport Clearance, Ground Water Board permission Licene No.28 for 169.864 Acre, No.55 for 10.594 acres and No.74 for 18.343 acres were granted on 26.02.2010, 19.08.2011, 23.02.2010, 01.08.2013 and 01.08.2013 respectively. It was further stated that lay out for entire project was revised on 14.10.2013, environment clearance was granted on 15.04.2014. It was further stated that due to pendency of grant of NOC from National Wild Life Board, the development work at the site could not be commenced prior to April 2015.
9. It was further stated that while granting environment clearance on 15.04.2014, fresh condition was imposed, that the development work shall be commenced, only after obtaining NOC from the Standing Committee of the National Board of Wild Life (NBWL), which was ultimately obtained on 24.04.2015.
10. In other words, the opposite parties have tried to convince this Commission, that the delay in commencement of development work and offering possession of the plot to the complainant occurred, not on account of delay in grant of necessary regular approvals, in routine, but was due to the fact that fresh conditions were imposed by the Competent Authorities, and as such, the intervening circumstances were totally beyond their control. It was further stated that all the events mentioned above, were beyond the control of the opposite parties, and as such, the development at the project site could not be commenced till April 2015. It was further stated that the mutual rights and liabilities of the parties are governed by the agreement and it was specifically agreed that in case of force majeure circumstances, the period of delivery of possession shall stand extended automatically to the extent of the delay caused due to force majeure circumstances. It was further stated that the delay in start of development works at site was neither intentional nor deliberate rather was a result of force majeure circumstances.
11. It was further stated, that neither there was any deficiency, in rendering service, on the part of the opposite parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
12. The parties led evidence, in support of their case.
13. We have heard Sh. Vikrant Rana, Advocate, Counsel for the complainant and Sh. Rohit Tanwar, AGM (Legal) of the Opposite Parties and, have gone through the evidence and record of the case, carefully.
14. First, we will deal with an objection, raised by the Opposite Parties, that in the face of existence of provision 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.
15. It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ' Sarbjit Singh Vs. Puma Realtors Private Limited', IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon'ble Supreme Court, titled as 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, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon'ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.
16. In view of above, the objection raised by the Opposite Parties, in this regard, being devoid of merit is rejected.
17. The next question that falls for consideration, is, as to whether, the complainant is a speculator or not. No doubt, to defeat claim of the complainant, an objection was raised by the opposite parties, to the effect that the complainant, being an investor, had purchased the plot, in question, for earning profits, as and when there is escalation in the prices of real estate, as such, he would not fall within the definition of consumer, as defined under Section 2(1)(d) of 1986 Act. It may be stated here that there is nothing, on the record to show, that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. It may be stated here that 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 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 National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as "Aashish Oberai Vs. Emaar MGF Land Limited", Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-
"In the case of the purchase of the house 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 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. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015."
The principle of law, laid down, in the aforesaid cases is fully applicable to the present case. The objection raised, being devoid of any substance, stands rejected.
18. The next question that falls for consideration, is, as to whether, since the complainant sought enforcement of the Agreement, in respect of the immovable property, only a Civil Court can decide the complaint, and as such, consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the opposite parties, for purchasing a plot, in question, in the manner, referred to above. According to Clause 11 of the Agreement, subject to force majeure conditions and reasons, beyond the control of opposite parties, they were to deliver physical possession of the plot, within a maximum period of 30 months, as explained above, from the date of execution of the same (Agreement), with complete basic amenities, as provided in Clause 22.4. Section 2 (1) (o) of the Act, defines service as under:-
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"
From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he falls within the definition of 'consumer', as stated above. In this view of the matter, the objection of opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
19. The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, a consumer complaint could be filed by the complainant(s), before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident, that the payment receipt (Annexures C-2) and provisional allotment letter (Annexure C-3), placed on record, were issued by the Chandigarh Office of the opposite parties, as the same bore the address "SCO 6-7-8, Sector 9-D, Chandigarh". Not only as above, as per Clause 29 of the Agreement, address of the Company for communication and notices is also found mentioned as "SCO 6-8, First and Second Floors, Sector 9-D, Chandigarh-160009 (India)". Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
20. The next question, that falls for consideration, is, as to within which period, possession of the plot, in question, was to be delivered to the complainant. As stated above, according to Clause 11.1 of the Agreement dated 21.09.2011, subject to force majeure conditions/reasons, beyond the control of the opposite parties, they were to deliver physical possession of the plot, within a period of 30 months i.e. 24 months plus (+) 6 months, from the date of execution of the same (Agreement), with complete basic amenities, as provided in Clause 22.4 i.e. latest by 20 . 03 .201 4. It is also evident, from the combined reading of Clauses 11.1, 11.2 and 11.3 of the Agreement that possession was to be delivered within maximum period of 42 months of the execution thereof. Period of 42 months expired on 20.03.2015. Thus, the complainant became entitled to opt for termination of the allotment/Agreement, and seek refund of the actual paid up installments made against the plot, in question and, as such, he sought refund vide letter dated 08.08.2016 (Annexure C-5).
21. Admittedly, possession of the plot, in question, has not been delivered by the opposite parties to the complainant till the date, the instant complaint was filed or even till date. In the written version, the opposite parties, frankly admitted, that possession of the plot, in question, could not be offered to the complainant, for want of construction and development work at the site, on account of the reasons beyond their control i.e. on account of force majeure circumstances. In this regard, it was submitted that the opposite parties had already obtained licence No.28 of 2010, from the Haryana Government, Town and Country Planning, on 23.03.2010, to launch the project, in question, in 169.864 acres of land, yet, despite that, various new/fresh conditions/objections were imposed/raised by the Competent Authorities.
22. The force majeure circumstances, which have been claimed by the opposite parties, for not starting development and construction work at the site till April 2015 i.e. (i) imposition of fresh condition by the Directorate of Town & Country Planning, (DTCP) Haryana, to obtain NOC from the Irrigation Department, before starting the construction work; and (ii) Licence for additional land measuring 10.594 acres plus 18.343 acres, which was a part of the project was eventually granted on 15.04.2014, subject to additional condition, that the development work shall be commenced, only after obtaining NOC from the Standing Committee of the National Board of Wild Life (NBWL), which was ultimately obtained on 24.04.2015 etc., have already been dealt with, in detail, by this Commission in case titled ' Mrs. Tejasvini Vs. M /s Ireo Fiveriver Private Limited & Anr.', Complaint Case No.513 of 2017, decided on 05.03.2018. Paras 24, 25 and 27 to 33 of the said judgment reads thus:-
"24. First coming to the plea taken by the opposite parties, to the effect that delay aforesaid occurred on account of fresh condition, imposed by the Directorate of Town & Country Planning, (DTCP) Haryana, vide letter dated 16.03.2011, to obtain NOC from the Irrigation Department, before starting the construction work, it may be stated here that bare perusal of letter dated 16.03.2011 (Annexure OP-45, at page 307 of the file), clearly goes to reveal that it was not a fresh condition imposed by the DTCP, Haryana, but, on the other hand, it was a violation on the part of the opposite parties, pointed out by the said Department, in not obtaining NOC from the Irrigation Department, which was a mandatory requirement, before undertaking construction activities at the site. As such, vide letter dated 16.03.2011, Annexure OP-45, the opposite parties were directed to obtain the same, before carrying out any earthwork or construction work of any kind, at the site. However, it is also an admitted case that the opposite parties applied to the Irrigation Department for issuance of NOC, vide letter dated 23.02.2012, Annexure OP-47, without getting their project hydraulically studied, as a result whereof, their request was rejected, and after getting the needful done, NOC was finally granted on 20.03.2013, Annexure OP-56. The opposite parties cannot say that obtaining of NOC from the Irrigation Department and also getting their project hydraulically studied from some premier Institute, were new/fresh conditions imposed by the Authorities, as a result whereof, the delay aforesaid, occurred. Had these been the new/fresh conditions imposed by the Government Authorities, then it has not been clarified by the opposite parties, as to how and why, the project of DLF, which is adjacent to the project, in dispute, had obtained the said NOC after adopting due procedure, reliance whereupon had been placed by them (opposite parties), in letter dated 09.03.2012 Annexure OP-49 (at page 313 of the file). The delay, therefore, is attributable to the opposite parties, as they failed to adopt proper procedure timely, for getting NOC from the Irrigation Department, at the appropriate time, as had been done by the DLF. No help therefore, can be drawn by Counsel for the opposite parties, on this count.
25. The second plea taken by the opposite parties, to the effect that licence for additional land measuring 10.594 acres plus 18.343 acres, which was a part of the project was not cleared by the Department, as the area was situated in a squatted small pockets, and also on ground of non-grant of NOC aforesaid, by the Irrigation Department, is bereft of merits, in view of the findings, given above by this Commission, wherein, it was held that fault, if any, was attributable on the part of the opposite parties, in not obtaining NOC, after adopting due procedure at the appropriate time. Infact, the complainant was given to understand that the opposite parties were to develop a residential colony on certain pieces of land admeasuring 169.864 acres. While Licence for 169.864 acres was granted on 23.03.2010, Annexure OP-5, approval of layout plans were granted only on 02.08.2013 (Annexure OP-12).
26. xxxxxx.
27. Coming to the fourth plea taken by the opposite parties, that while giving approval vide letter dated 15.04.2015, by the Environment Department, for developing a land measuring 169.864 acres, the Authorities, vide letter dated 12.06.2012, had imposed an additional condition, that the development work shall be commenced, only after obtaining NOC from the Standing Committee of the National Board of Wild Life (NBWL), which was ultimately obtained on 24.04.2015, resulting into delay of project, it may be stated here that perusal of contents of Licence No.28 of 2010 Annexure OP-5, issued by the Haryana Government, in respect of the project, in question, clearly goes to show that the same was issued subject to conditions mentioned therein, out of which at sr. no. (h), in a very a clear-cut manner, directions were given to the opposite parties, that they shall obtain approval/NOC from the Competent Authorities, to fulfill the requirements of notification no.195 of 19.01.2009, issued by the Ministry of Environment and Forests, Govt. of India, before starting the development works in the colony. Not only this, at sr.no.i), it was also made clear to the opposite parties, to seek approval from the Competent Authority, under the Punjab Land Preservation Act, 1990, or any other statute applicable at site, before starting the development works, if required. Thus, reading of the said conditions makes it very clear that licence was granted to the opposite parties, for launching the said project, subject to the conditions that they were to obtain prior approvals/sanctions from all the Departments concerned including the National Board of Wild Life (NBWL), but they miserably failed to do so.
28. Not only this, it is very significant to mention here that perusal of contents of letter dated 12.06.2012 (Annexure OP-20), reliance whereupon has been placed by the opposite parties, to say that delay aforesaid occurred also on the ground that fresh condition was imposed by the Environment Authorities, clearly goes to reveal that, there is nothing sort of that, but, on the other hand, vide the said letter, it was intimated to the opposite parties by the Secretary State Expert Appraisal Committee, Haryana, that since the project proponent (opposite parties) did not possess licence of the area for which it had submitted application for Environment Clearance and also that it (project proponent) had not supplied the land details and collaboration/development agreement with the licence holders, approved layout plan and area statement of each licence holder, duly signed by the DTCP, as such, clearance in that regard cannot be given. Thus, it was not a fresh condition imposed by the Authorities concerned, but were the shortcomings observed by the said Committee, on the part of the opposite parties, which were required to be fulfilled before issuance of the Environment Clearance. No help therefore, can be drawn by the opposite parties, on this count too.
29. As far as the plea taken by the opposite parties, regarding delay in sanction of final lay-out plans by the Competent Authorities, is concerned, it may be stated here the same also does not merit acceptance. It was the bounden duty of the opposite parties to get approved the final layout plans, in respect of the project, in question before launching it, and only, thereafter, accept booking amount from the customers. The complainant including other allottees cannot be penalized for the delay in the aforesaid sanction of layout plans. Further more, various other permissions/approvals and also the applications sent in respect of obtaining the same pertains to the years 2013 to 2015 i.e. after the date of execution of agreement. If the opposite parties chose to accept booking, on the basis of provisional sanction of the layout plan, without obtaining all necessary approvals and clearances from the Competent Authorities, they are to be blamed themselves, for the delay, and not the purchasers of units. The documents placed on record, are sufficient to prove that there was lapse on the part of the opposite parties, themselves. Had all the permissions been taken by the opposite parties well in advance, revision of layout plans, at a later stage, and delay could have been easily avoided. The purchaser(s) of a plot, cannot be penalized, by postponing the possession or registration of the unit. Similar view was taken by the National Commission in a case titled as M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17th Dec 2015. As such, the plea raised by the opposite parties, in this regard, also stands rejected.
30. It is also very significant to mention here that the licence was granted to the opposite parties, to launch the project, in question, subject to obtaining all the necessary approvals/sanctions from the Competent Authorities. It is a known fact that delay occurs in obtaining various permissions from different Governmental Authorities, and this fact is well-known to the builder(s). The time normally taken, in getting such permissions, could have been contemplated by the builder, before issuing the brochure/executing agreement. As such, it was the bounden duty of the opposite parties, to obtain the requisite permissions or sanctions, referred to above, in the first instance, and, thereafter, recover/accept the consideration money from the purchaser of the flats/plots, but they failed to do so. It is an unfair trade practice, if the builder, without any planning and without obtaining any effective permissions/sanctions/licence to allot plot or to construct building/apartments, invites offers and collects money from the buyers. Sequence of events, referred to above, clearly goes to prove that the opposite parties, were clearly deficient in rendering service and indulged into unfair trade practice. If the possession of plot, as also the construction of the building/apartment is delayed, because of the reasons referred to above, and the possession thereof is not delivered within the stipulated time, the builder itself is responsible for that, and it cannot take shelter under force majeure circumstances. It is settled law that a builder is bound to obtain all the necessary approvals/sanctions before launching and selling the project.
31. The aforesaid pleas taken by the opposite parties, claiming force majeure circumstances, referred to above, also deserve rejection, in the face of case titled as Ramesh Chander and another Vs. M/s IREO Fiveriver Private Limited, CC No.99 of 2014, decided on 29.04.2015, qua this very project, decided by the State Commission, Haryana, Panchkula. In that case also, almost similar excuses were given by the opposite party, for not starting development at the site and non-delivery of possession of the unit, to the purchasers, which were rejected by the State Commission, Haryana, Panchkula, by observing as under:-
"It is not disputed that the builder floated the project and they were bound to obtain all the permissions before they invite applications from public. The builder cannot raise plea that for want of certain clearances, the possession of the plot could not be delivered. When the builder invited the applications and collected huge amount from the public, they cannot delay the allotment/possession of the plot for awaiting clearances. Thus, delay/breach, if any, was on the part of the builder. The builder has not even remotely alleged any default on the part of the complainants"
32. First Appeal No.473 of 2015 filed against that order by the opposite party before the National Commission, New Delhi, was dismissed as withdrawn, vide order dated 22.07.2015.
33. Even otherwise, there is nothing on record, to show that at any stage, when the project was going to be delayed, difficulties now propagated were brought to the notice of the purchasers. On the other hand, without obtaining necessary approvals/sanctions from the Competent Authorities, which were mandatory to be obtained, as mentioned in the Licence dated 2010, referred to above, the opposite parties, with a view to grab money from the gullible customers, including the complainants, gave misleading information in the Agreement dated 27.06.2011 at Clause 'A' stating that "The Company is well and sufficiently entitled to develop a residential colony on certain pieces of land admeasuring 169.864 acres". Whereas, admittedly, development work at the site could not be undertaken by the opposite parties till April 2015, on account of the reasons that they failed to obtain mandatory permissions/sanctions from the Competent Authorities. In the present case, deficiency in providing service and adoption of unfair trade practices on the part of the opposite parties, was writ large, which fact has been proved on record, as has been discussed above, in detail, while referring the related documents. Thus, it has been proved on record, that the matter was not effectively taken up by the opposite parties, with the Government Authorities, to expedite the sanctions etc., so that construction/development at the project could be started. The opposite parties, thus, hurriedly sold units, in their project to the complainant and other allottees and have utilized the money of complainant for years. Perusal of written statement filed by the opposite parties, clearly goes to reveal that the opposite parties, have tried to shift their fault of delay aforesaid, on the shoulders of the Competent Authorities, by saying that there was delay on their part, in not giving timely permissions/sanctions/NOCs and also that new/fresh conditions were imposed by them, at later stage. The opposite parties cannot wriggle out of their liability, on the grounds indicated above, which have not been proved. It is, therefore, held that by not starting the development and construction work at the site and also by not handing over possession of the unit, to the complainant by the stipulated date, mentioned in the Agreement, and even as on today, there was a material violation, on the part of the opposite parties, for which, they are required to be put at naught."
In view of above, in this case also, it is held that by not starting the development and construction work at the site and also by not handing over possession of the plot, to the complainant by the stipulated date, mentioned in the Agreement, and even as on today, there was a material violation, on the part of the opposite parties.
23. The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.15,66,200/- deposited by him. It is an admitted fact and has also been held above by this Commission, that the opposite parties have not been able to deliver possession of the plot, in question, for want of complete development, construction and basic amenities, without existence of any force majeure circumstances. Even as on today, firm date of delivery of possession of the plot, in question, could not be given to the complainant. The complainant, cannot be made to wait for an indefinite period, for delivery of actual physical possession of the plot. On account of act and conduct of the opposite parties, hopes of the complainant to have his own house, were shattered. The opposite parties have failed to perform their part of the Agreement. The act in not handing over possession in time, as per the Agreement, is a material deficiency, in providing service on the part of the opposite parties. They (opposite parties), therefore, have no right, to retain the hard-earned money of the complainant, deposited towards price of the plot, in question. This Commission in case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, relying upon the judgments rendered by the Hon'ble National Commission, ordered refund to the complainant while holding as under:-
"Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-
"I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery".
The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.
It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Further 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 National Commission negated the plea taken by the builder while holding as under:-
"I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and, therefore, is entitled to refund the entire amount paid by him alongwith reasonable compensation, in the form of interest."
In view of the above, it is held that since there was a material violation on the part of the opposite parties, in not handing over possession of the plot by the stipulated date, the complainant is entitled to refund of the amount deposited, alongwith interest and compensation by way of filing the instant complaint.
24. It is to be further seen, as to whether the complainant is entitled to interest on the amount deposited alongwith interest, if so, at what rate? It is an admitted fact that an amount of Rs.15,66,200/- was paid by the complainant, to the opposite parties. The said amount has been used by the opposite parties, for their own benefit. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest @15% p.a. as per Clause 7.2 of the Agreement, for the period of delay in making payment of installments. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court) , (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). The complainant have made a prayer for refund of the amount deposited, alongwith interest @15% p.a., till realization. In our considered view, the request made for, by the complainant, @15% p.a. is on the higher side. If interest @13% p.a., on an amount of Rs.15,66,200/-, is granted, that will meet the ends of justice. (Above rate of interest is less than the rate of interest charged by the opposite parties for delayed payment i.e. 15% P.A.). Therefore, the complainant is held entitled to refund of the deposited amount alongwith interest @13% p.a. (simple) from the dates of respective deposits.
25. The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, on account of mental agony and physical harassment, and injury caused to him, by not delivering physical possession of the plot to him, by the opposite parties, by the promised date in the Agreement i.e. by 20.03.2014. The opposite parties, in their written statement, have contended that in absence of any allegation by the complainant that they suffered loss, compensation under Section 14(1)(d) of the Act cannot be granted. In the complaint in hand, the complainant has specifically prayed for compensation of Rs.2 Lakhs on account of mental agony and harassment. The complainant purchased the plot, with the hope to have a roof over his head alongwith family members but his hopes were dashed to the ground. Possession of plot, in question, has not been offered to the complainant. The complainant, thus, underwent a lot of mental agony and harassment, on account of the acts of omission and commission of the opposite parties. Had the possession been offered to the complainant by the date stipulated in the Agreement i.e. 20.03.2014, he would have been in a position to utilize the same. Delay of more than five years in delivering possession is a clear act of deficiency on the part of the opposite parties and loss to the complainant. Considering all facts including the fact that the complainant has been granted interest @13% per annum on the amount deposited, compensation, on account of mental agony and harassment, caused to the complainant, if granted, to the tune of Rs.1,25,000/- shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,25,000/-.
26. In view of above, we grant similar relief in connected Complaint Case bearing No.5 of 2018 titled 'Randeep Sangwan Vs. IREO Fiveriver Private Limited & Anr.', wherein complainant is held entitled to refund of the Rs.47,55,484.02 alongwith interest @13% p.a. from the respective dates of deposits till actual realization. The complainant is also held entitled to compensation in the sum of Rs.1,25,000/- for mental agony and physical harassment.
27. Since, there is no Regional Manager in Opposite Party No.1 - Company, therefore, the complaint bearing No.5 of 2018 against Opposite Party No.2 is liable to be dismissed.
28. No other point, was urged, by the Counsel for the parties.
29. For the reasons recorded above, both the complaints bearing Nos.852 of 2017 and 5 of 2018 are partly accepted, with cost. The opposite parties, jointly and severally (in CC/852/2017) and Opposite Party No.1 (in CC/5/2018) are held liable and directed as under:-
(i) To refund the amount of Rs.15,66,200/- (in CC/852/2017) and Rs.47,55,484.02 (in CC/5/2018) to the complainant(s), alongwith interest @13% p.a. (simple) from the respective dates of deposits, within a period of 45 days, from the date of receipt of a certified copy of this order.
(ii) To pay an amount of Rs.1,25,000/-, in each case, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/-, in each case, as cost of litigation, to the complainant(s), within a period of 45 days from the date of receipt of a certified copy of the order.
(iii) In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the aforesaid opposite parties, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% (simple), from the date(s) of default i.e. after expiry of 45 days period, till realization and amount(s) mentioned in Clause (ii) above, with interest @13% (simple) from the date of filing the complaint(s) till realization.
30. In case, the complainant(s), have availed loan facility from a financial institution(s), it is made clear that the said Institution shall have the first charge on the amount(s) payable, to the extent, the same is due against the complainant(s).
31. Complaint Case bearing No.5 of 2018 against Opposite Party No.2 stands dismissed with no order as to cost.
32. Certified copy of this order be also placed in the file of Complaint Case bearing No.5 of 2018.
33. Certified Copies of this order be sent to the parties, free of charge.
34. The file be consigned to Record Room, after completion.
Pronounced 12.10.2018.
[PADMA PANDEY] PRESIDING MEMBER [RAJESH K. ARYA] MEMBER Ad