w w w . L a w y e r S e r v i c e s . i n



Abhishek Jain v/s Sandwoods Infratech Projects Pvt. Ltd. & Others


Company & Directors' Information:- ABHISHEK CORPORATION LIMITED [Active] CIN = L51491PN1993PLC073706

Company & Directors' Information:- K L S R INFRATECH LIMITED [Active] CIN = U45400TG2011PLC072158

Company & Directors' Information:- G R INFRATECH PRIVATE LIMITED [Active] CIN = U45201RJ2010PTC031015

Company & Directors' Information:- G R INFRATECH PRIVATE LIMITED [Amalgamated] CIN = U45201GJ2010PTC098472

Company & Directors' Information:- R T INFRATECH PRIVATE LIMITED [Active] CIN = U45400WB2011PTC160181

Company & Directors' Information:- SANDWOODS INFRATECH PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2003PTC122426

Company & Directors' Information:- N. H. INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2013PTC057055

Company & Directors' Information:- D K S INFRATECH INDIA PRIVATE LIMITED [Active] CIN = U45400UP2015PTC070754

Company & Directors' Information:- P. N. A. INFRATECH PRIVATE LIMITED [Active] CIN = U45200UP2006PTC061782

Company & Directors' Information:- S K INFRATECH PRIVATE LIMITED [Active] CIN = U70102DL2009PTC195508

Company & Directors' Information:- C J INFRATECH PRIVATE LIMITED [Active] CIN = U45200GJ2015PTC082310

Company & Directors' Information:- B E INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2010PTC040469

Company & Directors' Information:- N. M. INFRATECH PRIVATE LIMITED [Active] CIN = U45201CT2010PTC021959

Company & Directors' Information:- A K INFRATECH INDIA PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC166364

Company & Directors' Information:- G S S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45209TG2009PTC066136

Company & Directors' Information:- N P INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2010PTC041169

Company & Directors' Information:- G T B INFRATECH PRIVATE LIMITED [Active] CIN = U70102DL2013PTC262831

Company & Directors' Information:- D. L. INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2012PTC051029

Company & Directors' Information:- H S INFRATECH PRIVATE LIMITED [Active] CIN = U45200DL2007PTC171389

Company & Directors' Information:- M. L. INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102UP2012PTC049517

Company & Directors' Information:- V. S. INFRATECH (INDIA) PRIVATE LIMITED [Active] CIN = U45400UP2008PTC035313

Company & Directors' Information:- H K INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2011PTC046620

Company & Directors' Information:- K A S INFRATECH PRIVATE LIMITED [Active] CIN = U70100DL2014PTC264637

Company & Directors' Information:- S. J. INFRATECH PRIVATE LIMITED [Active] CIN = U45201GJ2008PTC055572

Company & Directors' Information:- D H INFRATECH PRIVATE LIMITED [Active] CIN = U72200WB2007PTC114579

Company & Directors' Information:- P AND S INFRATECH PRIVATE LIMITED [Active] CIN = U45201OR2008PTC010495

Company & Directors' Information:- D S INFRATECH PRIVATE LIMITED [Active] CIN = U45400HR2010PTC040726

Company & Directors' Information:- D N R INFRATECH INDIA PRIVATE LIMITED [Strike Off] CIN = U45200TG2011PTC072007

Company & Directors' Information:- A TO Z INFRATECH PRIVATE LIMITED [Amalgamated] CIN = U45400DL2008PTC173245

Company & Directors' Information:- I S A INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2012PTC050137

Company & Directors' Information:- B D INFRATECH PRIVATE LIMITED [Active] CIN = U74900UP2010PTC040295

Company & Directors' Information:- AT INFRATECH PRIVATE LIMITED [Strike Off] CIN = U17291DL1994PTC063808

Company & Directors' Information:- A R S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45201DL2012PTC233450

Company & Directors' Information:- Y C R INFRATECH LIMITED [Active] CIN = U70109UP2021PLC143040

Company & Directors' Information:- G N G INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2014PTC065764

Company & Directors' Information:- G. H. INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102UP2013PTC057658

Company & Directors' Information:- ABHISHEK INFRATECH PRIVATE LIMITED [Active] CIN = U45200JH2010PTC014512

Company & Directors' Information:- P R INFRATECH PRIVATE LIMITED [Active] CIN = U45400DL2008PTC184432

Company & Directors' Information:- N N INFRATECH PRIVATE LIMITED [Active] CIN = U45200DL2012PTC233232

Company & Directors' Information:- C AND N INFRATECH INDIA PRIVATE LIMITED [Active] CIN = U45200AP2014PTC095393

Company & Directors' Information:- J. B. INFRATECH INDIA PRIVATE LIMITED [Active] CIN = U45202KA2007PTC041469

Company & Directors' Information:- L. P. INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2021PTC144864

Company & Directors' Information:- T G INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45204DL2011PTC225866

Company & Directors' Information:- K & B INFRATECH PRIVATE LIMITED [Active] CIN = U45201OR2011PTC013295

Company & Directors' Information:- S P INFRATECH PRIVATE LIMITED [Active] CIN = U28113DL2009PTC193089

Company & Directors' Information:- K & C INFRATECH PRIVATE LIMITED [Active] CIN = U70109HR2013PTC048493

Company & Directors' Information:- H L INFRATECH PRIVATE LIMITED [Active] CIN = U72900DL2007PTC163051

Company & Directors' Information:- D I F INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2015PTC070328

Company & Directors' Information:- M K INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74140AS2009PTC009273

Company & Directors' Information:- P M INFRATECH PRIVATE LIMITED [Under Process of Striking Off] CIN = U45209AS2012PTC011122

Company & Directors' Information:- B. P. INFRATECH PRIVATE LIMITED [Active] CIN = U74120UP2012PTC050141

Company & Directors' Information:- P G INFRATECH PRIVATE LIMITED [Active] CIN = U45201OR2010PTC011981

Company & Directors' Information:- B B S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400UP2010PTC039776

Company & Directors' Information:- G S L INFRATECH INDIA PRIVATE LIMITED [Active] CIN = U70102UP2014PTC067435

Company & Directors' Information:- R S A INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2007PTC159373

Company & Directors' Information:- L AND D INFRATECH PRIVATE LIMITED [Active] CIN = U45209UP2021PTC145023

Company & Directors' Information:- P J K INFRATECH INDIA LIMITED [Strike Off] CIN = U70109PB2013PLC037175

Company & Directors' Information:- R. P. S. INFRATECH PRIVATE LIMITED [Active] CIN = U45200JH2012PTC000289

Company & Directors' Information:- B AND H INFRATECH LIMITED [Active] CIN = U45209CH2010PLC032536

Company & Directors' Information:- T V A INFRATECH LIMITED [Strike Off] CIN = U70109DL2006PLC154309

Company & Directors' Information:- M P INFRATECH LIMITED [Strike Off] CIN = U45200MP2010PLC024751

Company & Directors' Information:- C L INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102HR2012PTC045548

Company & Directors' Information:- B. M. INFRATECH PRIVATE LIMITED [Under Process of Striking Off] CIN = U45204DL2010PTC201732

Company & Directors' Information:- F & B INFRATECH PRIVATE LIMITED [Strike Off] CIN = U55101AS2010PTC010219

Company & Directors' Information:- S. R. INFRATECH PRIVATE LIMITED [Active] CIN = U45200MH2009PTC190243

Company & Directors' Information:- F S INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2012PTC053508

Company & Directors' Information:- C H S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200TG2013PTC085657

Company & Directors' Information:- Z S INFRATECH PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102UP2013PTC055750

Company & Directors' Information:- A G H INFRATECH PRIVATE LIMITED [Active] CIN = U45202UP2013PTC060726

Company & Directors' Information:- A P INFRATECH PROJECTS PRIVATE LIMITED [Active] CIN = U45400CH2008PTC031429

Company & Directors' Information:- T P INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45201DL2012PTC241787

Company & Directors' Information:- D K INFRATECH PRIVATE LIMITED [Active] CIN = U70102DL2009PTC193848

Company & Directors' Information:- U. P. INFRATECH PRIVATE LIMITED [Active] CIN = U45200DL2008PTC174142

Company & Directors' Information:- 8 INFRATECH INDIA PRIVATE LIMITED [Active] CIN = U45400TG2020PTC146592

Company & Directors' Information:- INFRATECH INDIA PVT LTD [Strike Off] CIN = U99999DL1997PTC084925

Company & Directors' Information:- A S P INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2008PTC176484

Company & Directors' Information:- M S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC164458

Company & Directors' Information:- J & T INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2010PTC042532

Company & Directors' Information:- S F S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400UP2011PTC043142

Company & Directors' Information:- G. L. INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400UP2011PTC045841

Company & Directors' Information:- C & P INFRATECH PRIVATE LIMITED [Active] CIN = U70102TG2008PTC060819

Company & Directors' Information:- S A C INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC047111

Company & Directors' Information:- L R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74120UP2013PTC055304

Company & Directors' Information:- T N K INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74120UP2013PTC059510

Company & Directors' Information:- B N INFRATECH (A P) PRIVATE LIMITED [Strike Off] CIN = U45203AP2010PTC069704

Company & Directors' Information:- K A C INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45209TG2011PTC075843

Company & Directors' Information:- P M G INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102UP2011PTC045748

Company & Directors' Information:- J J INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2011PTC046818

Company & Directors' Information:- K P S B INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2012PTC050664

Company & Directors' Information:- P L S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102UP2013PTC057228

Company & Directors' Information:- L M INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2014PTC066101

Company & Directors' Information:- S G A INFRATECH PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102UP2014PTC066190

Company & Directors' Information:- R S R INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2015PTC070859

Company & Directors' Information:- V & P INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2015PTC071618

Company & Directors' Information:- V S M INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2016PTC076825

Company & Directors' Information:- G M S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45204DL2010PTC208368

Company & Directors' Information:- R S G INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC171157

Company & Directors' Information:- S M INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC171217

Company & Directors' Information:- JAIN INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2008PTC172712

Company & Directors' Information:- H R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2012PTC238429

Company & Directors' Information:- P D INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2012PTC240570

Company & Directors' Information:- L N D INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2012PTC242018

Company & Directors' Information:- G D INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2013PTC256246

Company & Directors' Information:- INDIA INFRATECH PRIVATE LIMITED [Active] CIN = U45400DL2013PTC257567

Company & Directors' Information:- T V K INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2015PTC275007

Company & Directors' Information:- D J INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74999DL2011PTC227252

Company & Directors' Information:- S N INFRATECH PRIVATE LIMITED [Active] CIN = U45201DL2005PTC135712

Company & Directors' Information:- M & T INFRATECH PRIVATE LIMITED [Active] CIN = U70109DL2013PTC250149

Company & Directors' Information:- S N S INFRATECH PRIVATE LIMITED [Active] CIN = U70109DL2013PTC255712

Company & Directors' Information:- K R INFRATECH PRIVATE LIMITED [Active] CIN = U70200DL2008PTC185176

Company & Directors' Information:- Y S R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70200DL2012PTC237345

Company & Directors' Information:- A G INFRATECH PRIVATE LIMITED [Active] CIN = U70200DL2012PTC242598

Company & Directors' Information:- J S G INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102DL2013PTC256729

Company & Directors' Information:- M R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70109DL2006PTC156032

Company & Directors' Information:- J C INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2008PTC175328

Company & Directors' Information:- V A H INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2012PTC246511

Company & Directors' Information:- B R S INFRATECH PRIVATE LIMITED [Under Process of Striking Off] CIN = U45200DL2013PTC248034

Company & Directors' Information:- A S M S INFRATECH PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U70101DL2005PTC137704

Company & Directors' Information:- J H A INFRATECH PRIVATE LIMITED [Active] CIN = U70101DL2013PTC259462

Company & Directors' Information:- U & M INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400HR2010PTC040118

Company & Directors' Information:- N K INFRATECH PRIVATE LIMITED [Active] CIN = U70102HR2011PTC042235

Company & Directors' Information:- INFRATECH PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70102HR2013PTC049407

Company & Directors' Information:- C B S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200HR2011PTC043224

Company & Directors' Information:- J R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200GJ2012PTC069050

Company & Directors' Information:- A F INFRATECH PRIVATE LIMITED [Active] CIN = U74200KL2013PTC035381

Company & Directors' Information:- V. U. D. INFRATECH PRIVATE LIMITED [Active] CIN = U45201UP2019PTC122955

Company & Directors' Information:- I H INFRATECH PRIVATE LIMITED [Active] CIN = U45309UP2020PTC135706

Company & Directors' Information:- V I H A N INFRATECH PRIVATE LIMITED [Active] CIN = U45309PN2020PTC195881

Company & Directors' Information:- D AND D INFRATECH PRIVATE LIMITED [Active] CIN = U51909GJ2021PTC122255

Company & Directors' Information:- R & F INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400TG2008PTC059851

Company & Directors' Information:- A A INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2007PTC158616

Company & Directors' Information:- R A INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2007PTC159385

    Complaint No. 164 of 2019

    Decided On, 03 March 2020

    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh

    By, THE HONOURABLE MR. JUSTICE RAJ SHEKHAR ATTRI
    By, PRESIDENT
    By, THE HONOURABLE MRS. PADMA PANDEY
    By, MEMBER & THE HONOURABLE MR. RAJESH K. ARYA
    By, MEMBER

    For the Complainant: Abhineet Taneja, Advocate. For the Opposite Parties: Munish Gupta, Advocate.



Judgment Text


Raj Shekhar Attri, President

The above captioned complaint has been instituted seeking directions to the opposite parties to refund the amount of Rs. 18,92,388 paid by the complainant towards purchase of flat bearing No. 65, Tower No. D-2, 5th floor, measuring 1325 square feet, in their project named “Sandwoods Opulencia”, Mohali, Punjab (in short the unit). Total sale consideration of the said unit was fixed at Rs. 41,73,750. It is the case of the complainant that despite making payment of substantial amount, referred to above, the opposite parties failed to start construction of the unit at the project site and deliver possession thereof by 24.5.2018, which was committed by them vide Clause 6 of the agreement dated 25.5.2015 (Annexure C-4). It has been averred that it also came to the knowledge of the complainant that the opposite parties launched the project without obtaining necessary approvals/sanctions from the competent Authorities. Emails dated 12.6.2019 and also 17.6.2019 (Annexure C-8 colly.) were also sent to the opposite parties with a request to refund the amount paid as they have failed to complete construction and development work at the project site but to no avail. Visits were also made to the office of the opposite parties in the matter, but that also did not make any difference.

2. By stating that the aforesaid act and conduct of the opposite parties amount to deficiency in providing service and adoption of unfair trade practice, thereby causing mental agony, harassment and also financial loss to the complainant, as he is paying equal monthly installments to the bank from which housing loan was obtained to make payment towards the price of the said unit, whereas on the other hand possession thereof, has not been offered to him for dearth of construction and development works, the complainant has filed the present complaint seeking refund of amount paid along with interest, compensation etc.

3. His claim has been contested by the opposite parties, on numerous grounds, inter alia, that in the face of existence of provision to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain this consumer complaint; that he did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act; that this Commission did not vest with pecuniary and territorial jurisdiction; and that the complaint is bad for non-joinder of financial institution as necessary party, from which he had taken housing loan for making payment of installments towards the said unit.

4. On merits, it has been admitted by the opposite parties that they received the amount as asserted by the complainant for the sale of unit aforesaid in the said project. It has been pleaded that since the project which is being developed by the opposite parties is very big, some delay is to be ignored; that construction work is going on in full flow, which is near completion; that the opposite parties are entitled to get extension of time for delivery of possession in view of Clause 6(b) of the agreement; that possession of the unit in question will be delivered to the complainant in near future; and that for any delays, the complainant will be compensated as per terms and conditions of the agreement. Remaining averments of the complaint have been denied. Prayer has been made to dismiss the complaint with cost.

5. This Commission has afforded adequate opportunities to both the parties to adduce evidence in support of their respective contentions, by way of filing affidavit, which was adduced by them.

6. We have heard the contesting parties and have gone through the record of the case, very carefully.

7. In this case, following points have emerged for consideration:

(i) Whether the arbitration clause contained in the agreement bars the jurisdiction of this Commission?

(ii) Whether this Commission has territorial and pecuniary jurisdiction to entertain this complaint?

(iii) Whether the complainant falls under the definition of consumer?

(iv) Whether there was any deficiency in rendering service, negligence and unfair trade practice on the part of the opposite parties?

(v) Whether the complainant is entitled to get refund of the amount paid along with interest and if yes, at what rate?

8. First, we would like to deal with the objection raised by the opposite parties to the effect that in the face of existence of provision in the agreement, to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh v. Emaar MGF Land Limited & Anr., III (2017) CPJ 270 (NC)=Consumer Case No. 701 of 2015, decided on 13.7.2017, wherein it was 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 13.2.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos. 23512-23513 of 2017 against order dated 13.2.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the opposite parties in this regard stands rejected.

9. Now coming to the objection regarding territorial jurisdiction, it may be stated here that perusal of payment receipts dated 13.3.2015 (Annexure C-1), 24.4.2015 (Annexure C-2) and allotment letter dated 9.5.2015 (Annexure C-3), reveal that the same have been issued by Chandigarh Office of the Company, as the same bear the Corporate Address thereof as SCO 222-223, Sector 34-A, Chandgiarh-160022. Not only as above, even the buyer’s agreement dated 25.5.2015 (Annexure C-4) was also executed between the parties at Chandigarh Office of the Company, as is evident from page 1 thereof, wherein it has been written—“This Apartment Buyer’s Agreement is made at Chandigarh on this 25th day of May 2015”, meaning thereby that the opposite parties are actually and voluntarily residing and carrying on their business, at the said Chandigarh Office for gain. This Commission, therefore, has territorial jurisdiction to entertain this complaint. As such, objection taken in this regard is rejected.

10. Now, we will like to deal with the objection raised by the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It may be stated here that as per Section 17(1)(a)(i) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakh but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 Ors. v. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC)=Consumer Case No. 97 of 2016, decided on 7.10.2016. As such, in the present case, if total value of the unit, in question, i.e. Rs. 41,73,750, plus compensation claimed by way of interest @ 18% p.a. on the deposited amount of Rs. 18,92,388 and other reliefs claimed, are clubbed together, it exceeds Rs. 20 lacs and fell below Rs. 1 crore. This fact is also fortified from the calculation sheet dated 21.7.2019 (Annexure C-10) attached along with the complaint by the complainant. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint. Objection taken by the opposite parties in this regard stands rejected.

11. As far as objection taken to the effect that the complainant did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainant has purchased the unit in question to indulge in ‘purchase and sale of flats’ as was held by the Hon’ble National Commission in Kavit Ahuja v. Shipra Estates, I (2016) CPJ 31 (NC), but since they failed to discharge their onus, hence we hold that the complainant is a consumer as defined under Section 2(1)(d) of the Act.

12. There is no dispute that the complainant had booked a unit in the said project of the opposite parties and had paid total amount of Rs. 18,92,388 towards the same. It is also not in dispute, that as per clause 6 of the agreement dated 25.5.2015 (Annexure C-4) the opposite parties committed to hand over possession of the said unit, latest by 24.5.2018, but the same has not been done by the said date or even by the date when arguments were heard in this complaint. In the written reply filed by the opposite parties, not even a single reason has been given, as to why possession has been delayed. However, on the other hand, it has been stated that since the project is a big one, as such, some delay needs to be ignored; and that the construction work is going on in full swing and possession will be delivered in the near future.

13. At the time of argument also, we specifically asked Counsel for the opposite parties as to how much time, will the Company take to complete construction and development work and deliver possession of the unit in question; he was having no satisfactory reply and gave stereotype answer that work is going on at the project site and possession will be delivered in the near future. It may be stated here that every proposed buyer or the allottee has a right to know the nature of title of the land; requisite license, certificates etc. in respect of the project wherein he has purchased a unit; and as to whether the builder/developer is authorized to raise construction and sell the units therein or not. However, in the instant case, even this much has also not been proved that necessary approvals/sanctions had been obtained before launching the project in question and that license and other permissions have been granted to the opposite parties authorizing them to start construction and sell the units therein. Even the list of Directors of the Company has not been submitted along with the reply filed by the opposite parties.

14. Burden to prove that the project has been launched and that development work has started therein and that the same is about to complete, is on the builder/opposite parties. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and Another v. Krishan Chander Chandna, IV (2014) CPJ 589 (NC)=First Appeal No. 873 of 2013, decided on 29.9.2014. However, in the present case, not even a single document has been placed on record by the opposite parties to show as to whether CLU has been granted in respect of the project in question; licence has been obtained to launch the same; and that all approvals/sanctions have been obtained from the competent Authorities. At the same time, nothing has been placed on record to convince this Commission that the opposite parties can be granted extension of time as envisaged under Clause 6 (b) of the agreement. To seek such immunity under force majeure circumstances the opposite parties were required to convince this Commission by placing on record cogent material but they failed to do so. Under these circumstances, it is held that by neither completing the construction and development work; nor delivering possession of the unit by the committed date or even thereafter, the opposite parties indulged into unfair trade practice and are also negligent and deficient in providing service.

15. We are of the considered opinion that the complainant cannot be made to wait for an indefinite period, at the whims and fancies of the opposite parties i.e. on the ground that they are ready to compensate the complainant for the period of delay in delivering possession of the unit in question. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. Our view is supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, II (2019) CPJ 34 (SC)=III (2019) SLT 435=Civil Appeal No. 12238 of 2018, decided on 2.4.2019 and also in Fortune Infrastructure v. Trevor D’ Lima & Ors., II (2018) CPJ 1 (SC)=III (2018) SLT 556=(2018) 5 SCC 442. In the present case also, since there has been a delay of more than one and a half years and the same is still continuing, as the opposite parties are not sure as to by which period possession of the unit could be delivered to the complainant, as such, we are of the considered opinion that if we order refund of the amount paid by the complainant along with suitable interest, that will meet the ends of justice.

16. The complainant is therefore held entitled to get refund of the amount actually paid by him along with interest @12% p.a. from the respective dates of deposit in view of principle of law laid down by the Hon‘ble Supreme Court of India in H.U.D.A. v. Neelam Sharma, Civil Appeal No. 3417 of 2003, decided on 18.8.2004, wherein it was 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. Recently also, under similar circumstances, the Hon’ble National Commission in Anil Kumar Jain & Anr. v. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), I (2020) CPJ 368 (NC)=Consumer Case No. 1605 of 2018, decided on 23rd December, 2019, ordered refund of the amount paid, along with interest @ 12% p.a.

17. At the same time, the opposite parties are also held liable to compensate the complainant for deficiency in providing service, negligence, adoption of unfair trade practice and also causing him mental agony and harassment.

18. As far as objection taken to the effect that the complaint is bad for non-joinder of financial institution from which the complainant has obtained housing loan, as necessary party, it may be stated here that the opposite parties have failed to clarify, as to what prejudice has been caused to them in such a situation. However, irrespective of the fact that the bank/financial institution has been made party to the complaint or not, this Commission in each and every complaint filed before it, wherein refund is ordered, gives direction to the effect that the bank/financial institution, if any, from which the complainant has raised housing loan for payment of installment, shall have the first c

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harge of the amount payable. In this complaint also, this Commission is going to pass such directions. As such, objection taken in this regard stands rejected. 19. For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties, jointly and severally, are directed as under: (i) To refund the amount of Rs. 18,92,388 to the complainant, along with interest @ 12% p.a., 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 of Rs. 18,92,388 shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization. (ii) To 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. 50,000 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 of Rs. 50,000, shall carry interest @ 9% p.a. from the date of passing of this order, till realization. 20. However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment towards the said unit, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant. 21. Certified copies of this order be sent to the parties, free of charge. The file be consigned to Record Room, after completion. Complaint allowed.
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