Rajesh K. Arya, Member1. This complaint has been filed by the complainant seeking refund of the amount paid by him i.e. Rs.16 Lakhs towards purchase of plot bearing No.8 in the township TDI City, Sector 110-111, Mohali, Punjab, total sale consideration whereof was Rs.31,62,500/-. The complainant paid the booking amount of Rs.7,50,000/- on 12.03.2009 and the said plot was allotted to him on 21.7.2009 vide allotment letter, Annexure C-1. Thereafter, the complainant paid the amounts of Rs.2,50,000/- and Rs.6,00,000/- on 18.06.2009 and 09.02.2011 respectively vide receipts, Annexures C-2 Colly. Plot Buyer€™s Agreement was executed between the parties on 25.01.2011, Annexure C-3 but the opposite parties did not incorporate any possession clause in the said agreement. The complainant also availed loan of Rs.10 Lakhs from opposite party No.4 €“ DHFL and tripartite agreement dated 29.01.2011, Annexure C-4, was executed. It has been further stated that the complainant got the plot booked for family and personal use. It was further stated that the opposite parties arbitrarily cancelled the plot vide letter dated 23.02.2011, Annexure C-5. It was further stated that the cancellation was uncalled for and unfair as the project was delayed and further the opposite parties illegally retained the amount, which is unfair trade practice on their part. It was further stated that opposite parties No.2 & 3 are active Directors who are managing the affairs of the opposite party No.1 €“ Company. It was further stated that the aforesaid acts of opposite parties No.1 to 3 are in clear cut violation of Section 6 of The Punjab Apartment and Property Regulation Act, 1995.2. By stating that the aforesaid act and conduct of opposite parties No.1 to 3 amount to deficiency in providing service and adoption of unfair trade practice, this complaint has been filed by the complainant.3. The claim of the complainant has been contested by opposite parties No.1 to 3 on numerous grounds, inter alia, that that the complainant being investor, did not fall within the definition of €œconsumer€ as defined under Section 2(1)(d) of the Act; that the complaint filed is time barred; that this Commission does not have the territorial and pecuniary jurisdiction to entertain and adjudicate the complaint.4. On merits, while admitting the factul matrix of the case, it has been stated that the proposal of opposite parties No.1 to 3 for setting up a Mega Housing Project was accepted by Directorate of Industries and commerce, Punjab and a letter of intent, Annexure R-1, was issued in their favour on 21.12.2005. It has further been stated that one sh. Surinder Singh submitted Registration-cum-Application form, annexure R-2 with the Company for allotment of a residential plot of 250 sq. yards on 07.01.2008 and deposited cheque of Rs.7,50,000/-. Subsequently, Sh. Surinder Singh applied for transfer of the said plot in the name of the complainant i.e. Mr. Daljit Singh Bains and accordingly, opposite parties No.1 to 3 affected the transfer. It was further stated that the complainant was allotted plot No.8 measuring 250 sq. yards at TDI City, Mohali, Sector 110-111, Landra Banur Road vide allotment letter dated 21.07.2009. It was further stated that several reminders were sent to the complainant to clear the outstanding dues and take the allotment of the said unit. It was further stated that the complainant chose Construction Liked Plan for making the payments towards the plot in question but he failed to adhere to the said plot as cheque of Rs.2,50,000/- issued by the complainant was dishonoured due to insufficient funds and accordingly, his allotment was cancelled vide cancellation letter dated 23.02.2011, Annexure R-12. Receipt of amounts of Rs.2,50,000/- and Rs.6,00,000/- has been admitted. Lastly, prayer has been made by the opposite parties to dismiss the complaint filed by the complainant.5. Opposite party No.4 in its written stated that the complainant was sanctioned loan of Rs.10 Lakhs, out of which, Rs.6 Lakhs was disbursed on 31.01.2011 and tripartite agreement was also entered into between the parties. It was further stated that opposite party No.4 has no relationship with the booking of the flat or the terms and conditions of the Buyer€™s Agreement. It was further stated that opposite party no.4 is not concerned with the allotment, sale, construction or delivery of the flat. It was further stated that opposite party has abided by the terms of the finance. It was further stated that the amount liable to be paid as on 21.08.2019 was Rs.5,73,816/- and in case of default in repayment, opposite party No.4 is entitled to take action as per law to recover its dues. It was further stated that since the complainant has availed loan facilities, therefore, he is responsible to make payments and cannot be absolved from his liability. Prayer has been made by opposite party No.4 to dismiss the complaint filed by the complainant.6. In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those contained in written statement filed by the opposite parties.7. The parties led evidence in support of their case.8. We have heard the contesting parties and have gone through the evidence and record of the case, including the written arguments filed by the parties, very carefully.9. First of all, coming to the objection 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 opposite parties No.1 to 3, to establish that the complainant has purchased the plot, in question, to indulge in €˜purchase and sale of plots€™ as was held by the Hon€™ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainant is a consumer. Not only this, the complainant has specifically stated in Para 5 of the complaint that he booked the flat for his family and personal use. Thus, the objection taken in this regard is rejected.10. So far as objection regarding territorial jurisdiction is concerned, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the present case, it is evident that the Buyers Agreement dated 25.01.2011, Annexure C-3 was executed between the complainant and opposite party No.1 €“ Company at Chandigarh. Further Tripartite Agreement dated 29.01.2011 was also executed at Chandigarh. In view of above, objection taken by opposite parties no.1 and 2, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.11. Now we will deal with the objection taken with regard to pecuniary jurisdiction is concerned; it may be stated here that this complaint has been filed under the Consumer Protection Act, 1986, under which, for determining pecuniary jurisdiction, this Commission is required to take into consideration the value of the goods and compensation claimed if any, by the complainant. In the present case also, if the total value of the plot in question i.e. Rs.31,62,500/-, plus other reliefs claimed are clubbed together, it fell above Rs.20 lacs and below Rs.1 crore, as such, this Commission has pecuniary jurisdiction to entertain this complaint. In this view of the matter, objection taken stands rejected.12. In the instant case, the factum qua allotment of Plot No.8 measuring 250 sq. yards in the project of opposite parties No.1 to 3 i.e. TDI City, Mohali in Sector 110-111, Landra €“ Banur Road, Punjab, payment of Rs.16 Lakhs i.e. Rs.7,50,000/- on 12.03.2009, Rs.2,50,000/- on 18.06.2009 and Rs.6,00,000/- on 09.02.2011 (Annexure C-2 colly.), execution of Plot Buyer€™s Agreement dated 25.01.2011 between the complainant and the Company €“ M/s Taneja Developers & Infrastructure Ltd. (Annexure C-3), and cancellation of his allotment vide cancellation letter dated 23.02.2011 (Annexure C-4) are not in dispute.13. At this stage, the question, which falls for consideration of this Hon€™ble Commission is as to whether cancellation of allotment so done by opposite parties No.1 to 3 vide cancellation letter dated 23.02.2011, Annexure C-4 could be held to be legal and valid. For this, this Commission is required to determine as to whether the opposite parties No.1 to 3 were entitled to demand the said amount of Rs.2,50,000/- in October 2011 i.e. whether the project, in question, had been launched after obtaining all the necessary permissions/approvals from the competent authorities and that the development at the project site had reached at that level, at which, they could have demanded the amount of Rs.2,50,000/- over and above the amount of Rs.16 Lakhs already received by them till 09.02.2011. In the case in hand, opposite parties No.1 to 3 have miserably failed to place on record any document, which could be said to be cogent and convincing, to apprise this Commission about the above fact. However, a similar issue in respect of the same project has already been dealt with by this Commission recently in a case titled €˜Sh. Rajesh Arora Vs. TDI Infratech Limited & Ors.€™ Consumer Complaint No.168 of 2019 decided on 24.02.2021, wherein also, TDI Infratech Ltd. claimed to have offered possession in the year 2012 whereas as per the documents placed on record, which were issued by their controlling authority i.e. GAMADA revealed that they were not having permission to launch the project by 2014, what to speak of offer of possession of the plot, in question. Relevant part of the said order reads as under:-€œ16. Now we will deal with the question, as to whether, the project in question is exempted from the provisions of PAPR Act. It may be stated here that Counsel for opposite parties no.1 and 2 has strongly placed reliance on Notification dated 18.09.2009 (Annexure OP-1/4) issued by the Government of Punjab, to say that the project in question stood exempted from the provisions of PAPR Act. It may be stated here that perusal of the said notification reveals that in order to avail the said exemption, one of the important conditions which opposite parties no.1 and 2 were liable to fulfil was that they shall acquire the entire project land in its name including land under agreement to develop and required to be acquired by Government. It was further made clear vide condition no.(vii) that in the absence thereof, opposite parties no.1 and 2 will not carry out any works at the project site. Though, as per condition no. (iv), opposite parties no.1 and 2 were required to acquire the entire project land in its name including land under agreement to develop and required to be acquired by Government, yet, it is coming out from para no.16 (reply on merits) of the joint reply filed by opposite parties no.1 and 2 only that as per agreement 10% of the land was to be acquired by the Government of Punjab, yet, when it was in the process of doing so, some land owners challenged the acquisition process before the Punjab and Haryana High Court, which is still pending adjudication. Thus, from this candid admission of opposite parties no.1 and 2, it is proved that condition no. (iv) of the Notification dated 18.09.2009 has not yet been fulfilled.Furthermore, as per condition no.(vi) of the said notification, before carrying out any work at the project site, opposite parties no.1 and 2 were liable to obtain environmental clearance from the Ministry of Environmental and Forest Government of India as required under EIA Notification dated 14-9-06 as well as consent to establish (NOC) from the Punjab Pollution Control Board, yet, it is coming out from the record dated 30.06.2020, submitted by opposite party no.4, in compliance of order dated 09.01.2020 passed by this Commission that Final NOC for Air and Water Pollution from Punjab Pollution Control Board had been obtained by opposite parties no.1 and 2 only on 12.05.2014 which was valid upto 31.03.2017 and there is nothing on record that extension in that regard has been obtained by the company or not. It is also coming out from the said compliance report that opposite parties no.1 and 2 had obtained Environmental Clearance from the Ministry of Environment and Forests, Government of India only on 06.02.2014. In the said compliance report, it has been in a very candid manner, brought to the notice of this Commission that opposite parties no.1 and 2 were bound not to have started work at the project site, in the absence of the aforementioned NOCs/permissions. The said Notification dated 18.09.2009 (Annexure OP-1/4) will operate, once the opposite parties fulfils all the conditions mentioned therein and not before that. In this view of the matter, it is held that since the said exemption certificate was issued subject to many various conditions, yet, opposite parties no.1 and 2 failed to fulfil the same, as such, no help therefore can be taken by them from Notification dated 18.09.2009 (Annexure OP-1/4).Not only as above, even as per terms and conditions contained in Letter of Intent dated 31.08.2006 (Annexure OP-1/7), before launching the project in question and selling the units/plots therein, opposite parties no.1 and 2 were bound to get layout plans approved/cleared; obtain environmental clearance; and NOC from the Punjab Pollution Control Board. However, record reveals that despite the fact that 10% of the land in question is still pending litigation before the Punjab and Haryana High Court; final NOC for Air and Water Pollution from Punjab Pollution Control Board had been obtained by opposite parties no.1 and 2 only on 12.05.2014 which was valid upto 31.03.2017 and there is nothing on record that extension in that regard has been obtained by the company or not; Environmental Clearance from the Ministry of Environment and Forests, Government of India has been obtained only on 06.02.2014, yet, the opposite parties no.1 and 2 launched the project in question and sold the plots/units therein to the prospective buyers and the complainant, starting from 2008 onwards, which act amounts to unfair trade practice and deficiency in providing service.It is also coming out from the record that even the layout plan was for the first time got cleared by opposite parties no.1 and 2, in respect of the project in question only on 04.06.2009, which was got revised on 23.12.2011. This fact has been admitted by opposite parties no.1 and 2 in para no.12 (i) of their joint reply, meaning thereby that even the layout plan was not got finally approved before selling the plot in question to the complainant in 2008.Thus, record reveal that, infact, the money has been collected with animus of cheating and fraud. It is settled law that a builder is duty bound to ensure that before accepting the amount of booking, necessary permissions/ sanctions have been granted for launching the project and selling the units/plots therein. It was so said by the Hon€™ble National Commission in Omaxe Limited and anr. Vs. Dr. Ambuj Chaudhary, First Appeal No. 300 of 2012, decided on 13.02.2017. In the present case, the project in question was launched and units/plots therein were sold to the innocent buyers, in complete violation of the mandatory requirements as per Law, just with a view to grab money from them. It is therefore held that opposite parties no.1 and 2 were not in a position to launch the project in question and sell units/plots to the general public including the complainant in the year 2008. By launching the project without obtaining necessary approvals/sanctions, referred to above, opposite parties no.1 and 2 indulged into unfair trade practice.17. However, this Commission is surprised to note that despite the fact that project is still under litigation before the Punjab and Haryana High Court, as some landowners have filed case against the Govt. of Punjab for acquisition of the project land, as has been admitted by opposite parties no.1 and 2 in their written statement, even then partial completion certificate dated 25.06.2015, Annexure OP-1/3 has been issued by opposite party no.4, for the reasons best known to it., Thus, irrespective of the fact that the said partial completion certificate dated 25.06.2015 was valid or not and for a moment even if it is assumed that the same was a valid certificate (though not admitting it to be valid) even in those circumstances also, the possession of the plot in question, so offered vide letter dated 09.04.2012, Annexure C-9 in the absence of any completion certificate could not be held to be valid possession. The fact that the said partial completion certificate was obtained only on 25.06.2015 (though not valid in the eyes of law), is sufficient to prove that by 09.04.2012, there was no partial completion certificate in the hands of opposite parties no.1 and 2. Thus, even if for the sake of arguments, the said partial completion is assumed to be genuine, then also the possession of plot so offered vide letter dated 09.04.2012 was nothing but a paper possession. However, without going deeply into this issue, we have been consistently holding that mere obtaining partial completion certificate, in the absence of final complete certificate is of no use to a builder. In none of the Acts/ Rules/Regulations like PARP etc. which are applicable to the projects located in Punjab, the Competent Authorities have given immunity to the builders/developers from obtaining final completion certificate in respect of a project, before offering possession of units/plots therein to the prospective buyers. The complainant was thus not obliged to retain the possession of the plot in question on the basis of the said offer of possession letter dated 09.04.2012.18. Under above circumstances, it is held that in the absence of necessary permissions referred to above; valid completion certificate from the competent authorities; and also the fact that the project is still under litigation, opposite parties no.1 and 2 were not in a position to deliver possession of the plot in question, in the year 2012 and as such, possession so offered by them to the complainant, vide letter dated 09.04.2012, Annexure C-9 was nothing but a paper possession, which is not sustainable in the eyes of law. The mere fact that some papers with regard to possession of the plot and also maintenance agreement have been got signed from the complainant by opposite parties no.1 and 2 under the animus of unfair trade practice, especially in the face of the proven fact that they were not in a position to do so, for want of necessary permissions/sanctions and also the fact that the project was pending litigation and nobody knows about its final outcome, no benefit can be given to them (opposite parties no.1 and 2) to defeat the claim of the complainant. Thus, if the complainant did not make some payment at the relevant time, he cannot be termed as defaulter.€14. Since the case in hand also relates to the very same project, as such, the findings and observations made in the case of Sh. Rajesh Arora (supra) are also applicable to the present case and in no manner, it can be said that by 2011, when opposite parties No.1 to 3 had already received substantial amount of Rs.16 Lakhs from the complainant, the cancellation done by them on the ground of nonpayment of Rs.2,50,000/- by the complainant was illegal and not sustainable in the eyes of law. The complainant was at liberty to stop the said payment 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 or within a reasonable period where no agreement is executed, it cannot expect the allottee(s) to go on paying installments to it. Similar view had 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 the instant case also, if the purchaser after making payment of substantial amount or stopped the same for some time, when he came to know that the project has been launched without obtaining necessary approvals/sanctions from the competent Authorities; and there was delay in raising development on the part of opposite parties No.1 to 3, he was right in doing so, in view of principle, referred to above, laid down by the Hon€™ble Supreme Court in Haryana Urban Development Authority (supra).15. Under above circumstances, we are of the considered opinion that we cannot make the complainant to wait for an indefinite period for delivery of actual physical possession of the plot in question. It is well settled law that non-delivery of actual physical possession of plots/units in a developed project by the promised date or if no period is mentioned in the agreement, within a reasonable period say two to three years from the date of booking, 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 this view is supported by the observations made by the Hon€™ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. This view taken is further 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. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Versus Trevor D€™ Lima & Ors. (2018) 5 SCC 442. In the facts and circumstances of the present case, we are of the considered opinion that ordering refund of the amount paid alongwith suitable interest will meet the ends of justice.16. Vide Miscellaneous Application No.211 of 2020, the complainant has intended to place on record account statement showing the rate of interest charged by the Bank and for amendment in the prayer clause qua rate of interest from 12% to 18%. Reply to this application already filed by opposite parties No.1 to 3. The document i.e. Account Statement, Annexure C-7 Colly, is taken on record. However, in our considered opinion, the complainant is, held entitled to get refund of the amount of Rs.16 Lakhs alongwith interest @12% p.a. from the respective dates of deposits in view of principle of law laid down by 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, 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. Under similar circumstances, the Hon€™ble National Commission in 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, also ordered refund of the amount paid, alongwith interest @12% p.a. Therefore, his prayer qua seeking interest @18% p.a. cannot be acceded to in view of aforesaid law settled by Hon€™ble National Consumer Disputes Redressal Commission, New Delhi. MA/211/2020 stands disposed of accordingly.17. As far as objection taken to the effect that the complaint filed is beyond limitation, it may be stated here that since it has been held above that actual physical possession of the plot in question was never de
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livered to the complainant and his allotment was cancelled in an arbitrary and illergal manner and further also the amount paid by him has also not been refunded, as such, there is a continuing cause of action in his favour in view of principle of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer and also in Ansal Housing And Construction Ltd. Vs. Tulika Gupta & Anr., First Appeal No. 545 of 2017, decided on 24 Aug 2017, wherein it was observed by the Hon€™ble National Commission that €œ€ordinarily if the possession is not given to the allottees, they would have a recurrent cause of action to file the complaint till the time either the possession was given to them or the amount paid by them was refunded€.€.. As such, objection taken in this regard is rejected.18. For the reasons recorded above, this complaint is partly accepted, with costs and opposite parties no.1 to 3, jointly and severally, are directed as under:-i. To refund the amount of Rs.16,00,000/- alongwith 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 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.19. This complaint against opposite party No.4 - Dewan Housing Finance Corporation Ltd. is dismissed with no order as to costs.20. However, it is made clear that opposite party No.4 - Dewan Housing Finance Corporation Ltd., from whom, the complainant has availed housing loan for making payment towards price of the said plot, 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.22. The file be consigned to Record Room, after completion.