Rajesh K. Arya, Member
1. This complaint has been filed by the complainants seeking refund of amount of Rs.45,16,323/- paid by them to opposite parties no.1 to 3, for the period from 30.06.2011 to 17.03.2018, towards purchased of flat bearing no.261-GF, measuring 1395 sq. ft. in Victoria Floors, Golf Links-II, Sector 116, Mohali, Punjab; alongwith interest, compensation etc., on the ground that they failed to deliver possession thereof by the committed date i.e. 19.05.2015 (30 months plus 6 months as envisaged under condition no.5.1 of the agreement dated 20.05.2012). It has been averred that for making payment towards price of the said unit, the complainants have availed housing loan, under subvention scheme, from opposite party no.4 and that they have been waiting for possession since long, yet, opposite parties no.1 to 3 failed to offer and deliver the same, for want of construction and development activities. Hence this complaint.
2. The claim of the complainants has been contested by opposite parties no.1 to 3 on numerous grounds, inter alia, that the complainants have concealed material facts from this Commission; that they did not fall within the definition of ‘consumer’, as they are speculators; that because the period of 36 months, for delivering possession of the unit was tentative and possession was to be delivered on receipt of statutory clearances from the competent Authorities, as such, time was not to be considered as essence of the contract; and that the complaint filed is beyond limitation
3. On merits, booking of unit in question, details of which have been given above; payments made by the complainants as mentioned in the complaint; execution of agreement; non delivery of possession of the unit by the promised date or by the date when this complaint has been filed, have not been disputed. However, it has been stated that the builder/Company is committed to pay Pre-EMI to the Bank concerned, under subvention scheme and also delayed compensation to the complainants as per terms and conditions of the agreement till offer of possession of unit is made to them. Remaining averments have been denied being wrong.
4. Opposite party no.4, in its written version pleaded that since no specific allegations have been levelled against it, as such, it has no concern, with the dispute, qua the complainants and builder/Company. However it has been averred that in case, this Commission comes to the conclusion that the complainants are entitled to refund of amount paid, then first charge be ordered in its favour, so that it is able to seek apportionment of its dues. Statement of outstanding loan amount dated 22.03.2021, vide email dated 23.03.2021 has been placed on record by opposite party no.4, wherein, it has been shown that an amount of Rs.37,23,782/- in all, is still outstanding against the said loan account.
5. The parties led evidence in support of their case.
6. Though, opposite parties no.1 to 3 had filed their written version and evidence, yet, they failed to appear before this Commission on the date of arguments i.e. on 23.03.2021, as a result whereof, they were proceeded against exparte.
7. We have heard the contesting parties and have gone through the evidence and record of the case, including the written arguments filed by the complainants, very carefully.
8. First, we will deal with the objection raised to the effect that the complainants 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 complainants have purchased the unit in question to indulge in ‘purchase and sale of units/flats’ 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 complainants are consumers. Objection taken in this regard, as such, stands rejected.
9. There is no dispute with regard to the fact that the complainants had booked the unit, in question, in the project of opposite parties no.1 to 3, against which substantial amount of Rs.45,16,323/- against total sale consideration of Rs.48,56,240/- stood received by them. It is also not in dispute that possession of the unit booked by the complainants has not been offered to them by the promised date i.e. 19.05.2015 (30 months plus 6 months as envisaged under condition no.5.1 of the agreement dated 20.05.2012) or even by the date when this complaint was filed or even thereafter. This fact has also not been disputed by the Company, in the written reply filed in this complaint. However, in the written reply filed, no firm commitment to hand over possession of the unit in the near future has been made by the Company. It has only been casually stated in the reply that the company is ready to compensate the complainants for the period of delay and also ready to pay the Pre-EMIs on the housing loan advanced under subvention scheme till offer of possession of the unit is made. However, not even a single reason has been given for delay in offering possession of the unit in question to the complainants. It is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that, in the present case, not even an iota of evidence has been placed on record by opposite parties no.1 to 3 to prove as to at what stage, construction and development work has reached at the project site and that as to whether approvals/sanctions have been obtained from the competent Authorities to launch the said project or not. In case, the development/construction activities are being undertaken and about to complete at the project site, then it was for opposite parties no.1 to 3, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, are being undertaken and almost complete at the site or not, but they failed to do so.
Furthermore, there is nothing on record to show that opposite parties no.1 to 3 suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed and possession of unit was not delivered to the complainants by the committed date or even thereafter.
10. From the peculiar circumstances of this case, it has been proved that the builder-Company made false representations, which were materially incorrect and were made in such a way that the complainants, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainants are thereby involved in a disadvantageous contract with builder-Company and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainants to enter into the contract by way of signing agreement, referred to above, and also intent to deceive them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the builder-Company.
11. As far as objection taken by opposite parties no.1 to 3 to the effect that time was not the essence of contract, it may be stated here that, in the absence of any force majeure circumstances, having been faced by them, they were legally bound to deliver possession of the unit in question, by the committed date, referred to above, as per condition no.5.1 of the agreement. Other than this condition no. referred to above, with regard to delivery of possession of the unit by the stipulated period, there is no other clause/condition, which speaks about the period/date for delivery of possession of the unit to the complainants. Thus, opposite parties no.1 to 3 cannot wriggle out of the commitments made vide the condition aforesaid, with regard to time/period for delivery of possession of the unit. It is therefore held that time was unequivocally made the essence of contract. In view of above, plea of opposite parties no.1 to 3 taken in their reply to the effect that time was not essence of the contract or that no definite period was given to offer possession of the unit, being devoid of merit stands rejected.
12. Facts of the case reveal that there has been an inordinate delay in the matter. Still, opposite parties no.1 to 3 are not sure, as to by which date, possession of the unit can be delivered to the complainants. The complainants cannot be made to wait for an indefinite period on the bald assurances given by opposite parties no.1 to 3 that they are ready to pay compensation for the period of delay in delivering possession or that they are committed to pay Pre-EMI to the Bank/Financial Institution concerned, from where loan has been obtained by the complainants, under subvention scheme.
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. 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 present case also, there has been an inordinate delay in the matter, which is still a continuing one and as such, the complainants are entitled to get back their money with interest.
In H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, it was held by the Hon’ble Supreme Court 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. Similarly, the Hon’ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019 and 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 awarded interest @12% p.a. to the complainant, on the amounts to be refunded to them from the respective dates of deposits.
Not only as above, even under Section 12 of the PAPR Act, read with Rule 17 of the Rules thereunder, it has been specifically mentioned that if the amount is to be refunded, it is to be refunded alongwith interest @12% p.a. It is, therefore, held that if interest @12% p.a. is awarded on the amount to be refunded to the complainants, that will meet the ends of justice.
13. Since, it is an admitted fact that possession of unit in question, has not been offered to the complainants either by the promised date or by the date this complaint has been filed or even thereafter, as explained above, as such, there is a continuing cause of action in their favour to file this complaint in view 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 is not offered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard, as such, stands rejected.
14. At the same time, it is also held that since the complainants have sought refund of the amount paid alongwith interest, compensation and litigation expenses, as such, they are not entitled to get any amount towards compensation for the period of delay in possession of the unit in question. If we grant this compensation also, that will amount to award of twin benefit to the complainants, at the cost of opposite parties no.1 to 3. As such, plea taken by the complainants in this regard stands rejected.
15. For the reasons recorded above, this complaint is partly accepted with costs. Opposite parties no.1 to 3 are directed as under:-
i. To refund the entire amount, actually paid by the complainants from their own sources/pocket, at the time of booking and thereafter also, towards price of the unit in question, alongwith interest @12% p.a., from the respective dates of deposits onwards, without deducting any TDS as this interest has been awarded as compensation.
ii. To refund the amount to the complainants, if any, paid by them to opposite parties no.1 to 3 or opposite party no.4, towards equated monthly installments/Pre-EMIs, on the loan amount, as it was the liability of opposite parties no.1 to 3, under subvention scheme, as admitted by them in
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their written statement also. iii. To repay the entire loan amount to opposite party no.4, released by it in favour of the Company, in respect of the unit in question alongwith pre-EMIs, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to opposite party no.4, opposite parties no.1 to 3 shall be bound to pay the equated monthly installments/Pre-EMIs to opposite party no.4, alongwith up-to-date interest on the loan account, till realization. iv. To pay compensation for causing mental agony and physical harassment and also litigation expenses, in lumpsum, to the tune of Rs.50,000/- to the complainants. v. The payment of amounts mentioned at sr.nos.(i), (ii) (if any) and (iv) shall be made by opposite parties no.1 to 3 to the complainants within a period of 30 days from the date of receipt of a certified copy of this order, failing which the amount mentioned at sr.nos.(i) and (ii) (if any), thereafter shall carry interest @15% p.a., from the date of default and interest @9% p.a., on the amount mentioned at sr.no. (iv) from the date of filing of this complaint, till realization, besides compliance of other directions given. vi. Complaint against opposite party no.4 is dismissed with no order as to costs, subject to directions aforesaid. 16. Certified Copies of this order be sent to the parties, free of charge. 17. The file be consigned to Record Room, after completion.