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



M/s. Phoenix Infra Pvt. Ltd., Throug Its Director, Pranav Puri v/s Paramjit Kaur Tiwana & Others

    First Appeal No. 1855 of 2017

    Decided On, 04 May 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT & THE HONOURABLE DR. S.M. KANTIKAR
    By, MEMBER

    For the Appearing Parties: Varinder Chhibbar, Vipul Kumar, Manik Garg, Advocates.



Judgment Text

1. Challenge in these two First Appeals, under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”), one by M/s. AIPL Ambuja Housing and Urban Infrastructure Ltd, Opposite Party No.3 in the Complaint/Appellant in First Appeal No. 1545/2017 (for short, “the Land Owner”) and the other by the Phoenix Infra Pvt. Ld., Opposite Party No.1 in the Complaint/Appellant in First Appeal No. 1855/2017 (for short, the “Developer”), is to the order dated 23.05.2017, passed by the Punjab State Consumer Disputes Redressal Commission at Chandigarh (for short “the State Commission”) in Consumer Complaint No. 259 of 2015. By way of impugned order, while allowing the Complaint filed by the Complainant/Respondent No. 1 herein, the State Commission has directed both the Appellants/Opposite Parties to refund a sum of Rs.30,78,000/- to the Complainant along with interest @ 12% p.a. in terms of Rule 17 of PAPRA; to pay Rs.3,00,000/- as compensation for the mental agony and harassment suffered by Complainant and Rs.30,000/- as limitation expenses, within a period of 30 days from the receipt of a copy of the order failing which the compensation amount shall carry interest @ 12% p.a. from the date of order till realization.

2. Since both the Appeals emanate from the same impugned Order, these are being disposed of by this common order.

3. Succinctly put, the material facts, giving rise to filing of the Complaint, are that the Opposite Party No.3, the Land Owner was the absolute owner and in possession of 6.13 acres of land located at Khanna, Punjab on which they wanted to develop a Township namely “Dream City” consisting of Plots, Villas, Independent Floors etc. Opposite Party No.1, the Developer through its Authorized Signatory (Opposite Party No.2), entered into a ‘Memorandum of Understanding’ with the Land Owner as its franchisee on 29.09.2012 for purchase of 14640 sq. yards of land for development and construction of multistoried G-2 (ground+ 2 floors) and marketing thereof.

4. The Developer through an advertisement invited the public to invest the amount in the Project, Dream City, with a promise to construct higher quality flats and to hand over possession within a period of 18 months from the date of booking. Being attracted by the advertisement issued by the Developer, the Complainant, a retired Principal from Guru Gobind Singh College, Ludhiana, purchased a flat, i.e. Unit No.1, Block G at Ground Floor having super area of 1350 sq. ft. and 300 sq. ft. lawn in the said township and paid the booking amount of Rs.1,50,000/- on 18.11.2012. An agreement to that effect was executed between the Complainant and the Developer on 19.05.2014. As per Clause C of the said Agreement, construction of the Unit was likely to be completed within a period of 18 months of commencement of construction, with a grace period of six months subject to the receipt of requisite approvals and permissions from the concerned authorities. In terms of the Clause D of the Agreement, upon completion of construction of the Unit, written offer of possession/final demand notice was to be issued to the Complainant. According to the Complainant, she paid a total sum of Rs.30,78,000/- to the Developer upto January 18, 2013 by raising a loan of Rs.20,00,000/- from HDFC Bank.

5. Since the Developer failed to deliver the possession as promised and there was no response to the letters/emails sent to them, the Complainant on 17.03.2015, alleging that a verbal promise was made to hand over possession by September 2013; no compensation had been paid for delay and not even a single floor had been completely constructed, wrote a letter to the Developer and requested them to return the hard earned money paid by her with 18% interest within a period of 15 days so that she could purchase a new house. As the said letter was not responded to by the Developer, the Complainant, through counsel, issued a legal notice dated 23.07.2015 to both the Opposite Parties seeking cancellation of the agreement and to refund the double of the amount paid by her, within a period of 7 days failing which she would be forced to proceed to civil as well as criminal court. The prayer for refund of the said amount having been turned down by the Opposite Parties, alleging deficiency in service on their part in misrepresenting that the construction work was in full swing and the project was approved by the GLADA; not handing over possession of the flat as promised; the area of the flat and lawn was on lesser side than shown in the agreement; to sign new and fresh documents in the form of fresh agreement and to threaten to usurp the money, the Complainant filed the Complaint in the State Commission inter alia praying for direction to the Opposite Parties to pay, jointly or severally, the double of the amount paid by her to them and further to pay Rs.15,00,000/- as compensation for irresponsible and unlawful behavour; Rs.55,000/- as litigation expenses and Rs.4,000/- as court fee.

6. Upon notice, the Complaint was resisted by the Developer by filing Written Version. However, vide Order dated 09.02.2016, the Opposite party No.2 was proceeded ex-parte and the Opposite Party No.3, the Land Owner did not chose to file any reply to the Complaint. As such the evidence adduced by them was not taken into consideration and averments made against them in the Complaint remained unrebutted.

7. On behalf of the Developer, it was pleaded that though it was carrying on the business of construction of the flats and other housing Project but was not working as franchisee of the Land Owner; no misrepresentation was made to the Complainant and at the time of entering into the agreement, all the terms and conditions thereof were explained to her and she, by her own free will, had entered into the agreement to purchase the flat in question; it was not jointly and severally bound to return double the amount paid by the Complainant; Complainant was not forced to sign any new or fresh document and was not threatened in any manner. It was also denied that due to their illegal and irresponsible behavour, the Complainant was to live in a rented house.

8. Upon evaluation of the material placed on record by both the parties especially the affidavit filed by one, Pranav Puri, Director of the Developer as well as having considered the various provisions of the Punjab Apartment and Property Regulation Act, 1995 (for short, “the PAPRA”), the State Commission came to the conclusion that the Opposite Parties had failed to raise construction of the Project within the stipulated time and even the requisite permissions/approvals from the concerned authorities for developing the Project in question were not obtained. Hence, in terms of Section 12 and Rule 17 of the PAPRA, they were liable to pay interest @ 12% on refund of advance money on cancellation of agreement. Consequently, the Complaint was allowed with the afore-stated directions to them. It was observed as under:-

“ The Complainant has made payment of substantial amount to the Opposite Parties with the hope to get the possession of the flat in a reasonable period. The circumstances clearly show that the Opposite Parties made false statement of facts about the goods and services i.e. allotment of plot and delivery of possession in a stipulated period. The act and conduct of the Opposite Parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the Complainant. Had the Complainant not invested her money with the opposite parties, she would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the plot booked. From the facts and evidence brought on record of the complaint, it is clearly made out that the Opposite Parties i.e. builder know from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the Complainant to book the flat, due to which the Complainant had suffered mentally agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. “

9. With regard to the responsibility of the Opposite Parties to refund the amount paid by the Complainant, the observations of the State Commission read as under:-

“ So far as the responsibility to refund the amount deposited by the Complainant, on account of non-development and non-delivery of project/flat, in question, is concerned as per Buyer’s Agreement, Ex. C-7, Opposite Party No.3 was developing the residential township and Opposite Party No.1 entered into a MOU with it to purchase the land mentioned in the MOU for further development, construction of multistoried G+2 (Ground + 2 floors) and marketing thereof. Opposite Party No.1 provided the allottee(s) on behalf of the Opposite Party no.3 with all the relevant information, documents, approvals, permission etc. As per clause A, the basic infrastructure such as public road, sewer line/water supply line etc. were to be provided by the Opposite Party No.3. Thus, it is clear that development of the project in question was the joint responsibility of the Opposite Parties and for non-development of the project, in question, and for refund of the amount deposited by the Complainant, the Opposite Parties are jointly and severally responsible. “

10. Hence, both the aggrieved Opposite Parties are before us in appeal for setting aside the impugned order passed by the State Commission.

11. We have heard Mr. Vipul Kumar, learned Counsel for the AIPL Ambuja Housing and Urban Infrastructure Ltd., Mr. Manik Garg for M/s. Phoenix Infra Pvt. Ltd. and Mr. Vainder Chhiber for the Complainant at some length and also perused the material available on record as well as the Written Arguments filed by the Parties.

12. Learned Counsel appearing for the AIPL Ambuja Housing and Urban Infrastructure Ltd. fervidly submitted that the various Clauses in the Memorandum of Understanding dated 29.09.2012 would indicate that the entire onus in relation to the construction/development of the Project was solely of the Developer and the Memorandum of Understanding was never intended to be a “Development Agreement” or a “Joint Venture Agreement”. In support of this contention he placed reliance upon Clause 7.1 of the MOU dated 29.09.12 which contemplates that “it is agreed that the First Party shall have no responsibility in respect of construction/development/transfer/sell and dispose of any independent floor.” He further urged that there was an understanding between the Developer and the Land Owner that the Opposite Party No.3, Land Owner was not to even interfere with the development/construction activities and it was the sole responsibility of the Developer. The Opposite Party No.3 was only to facilitate the Developer to obtain the necessary approvals/sanctions/NOC for the Project from the Competent Authorities on their costs. It was expressly agreed between the Land Owner and the Developer that the arrangement between them would not be in a nature of a partnership/joint venture. The Complainant had booked the Flat with the Developer and made all the payments to them only. The Opposite Party No. 3 is not a signatory/confirming party to any of the agreement/documents executed with the Complainant and as such there was no privity of contract between the Complainant and the Land Owner. Finally, he submitted that there was no allegation in the Complainant against the Opposite Party no.3 and as such the Complaint deserves to be dismissed qua them. In support of his contentions, he placed reliance upon the judgement in the cases of V. Kamala and Ors. Vs. A.P. State Consumer Disputes Redressal Commission and Ors. – AIR 2010 AP 146, Karnataka Housing Board Vs. D. Shantappa – IV (2014) CPJ 655 (NC) and Rednam Purushotthama Rao and Ors. Vs. Moradani Rama Mohan and Ors. – I(2011) CPJ 32 (NC).

13. As against this, Learned Counsel for the Developer rigorously urged that the Opposite Party No.3 was solely liable to get all necessary approvals from the Competent Authorities within three months from the date of execution of the Memorandum of Understanding which onus they failed to discharged; the necessary approvals were obtained by the Opposite Party No.3 from the Competent Authorities only on 14.05.2014 i.e. after 17 months from the date of execution of the Memorandum of Understanding and as such the delay, if any, in completion of the Project is attributable to the Opposite Party No.3; under the fresh MOU dated 21.05.2015, the Opposite Party No.3 had agreed that delay in completion of the Project is solely attributable to them and they granted further 20 months’ time to the Developer to complete the Project; the Developer was authorized by the Opposite Party No.3 Land Owner to execute Agreements with the prospective buyers on their behalf subject to certain terms and conditions; the draft Agreement to sell was also approved by the Opposite Party No.3; the Developer was doing construction work on behalf of the Opposite Party No.3 as mutually agreed between them and after arbitrary termination of the fresh MOU, the Developer has no authority to access the Project and complete it. He finally submitted that the Complaint has to be dismissed against the Developer.

14. Per contra, Learned Counsel appearing for the Complainant strongly submitted that as per the provisions of the PAPRA Act, the Land Owner of the Project is a Promoter who has some liabilities and responsibilities and therefore, it cannot be absolved from its duties. As per Section 12 of the PAPRA Act, if the Owner/Promoter failed to deliver the possession of the flat within agreed period, they are liable to refund the entire amount along with interest. Moreover, in the present case, the Opposite Party No.3, Land Owner had also executed agreements directly with the buyers and collected crores of rupees from the flat buyers. The Developer and the Land Owner both were the partners in the Project and they had not complied with the provisions of the PAPRA Act. Further, the opening of Escrow Account jointly by the Developer and the Land Owner establishes that the funds received from the prospective buyers were being used by both of them. He further argued that both the Opposite Parties had failed to obtain the necessary permissions from the Competent Authorities before the commencement of the Project and as such both the liable to refund the amount deposited by the Complainant and to pay compensation. Learned Counsel also forcefully contended that as rightly observed by the State Commission, in terms of various Clauses of the Agreement/MOU executed between the Parties, the Opposite Party No.3, Land Owner was liable to provide the basic infrastructure work and common area of the Township; the work of general upkeep and maintenance of the Township was to be done by the Opposite Party No.2 and the maintenance charges were also to be paid to them; permission for construction of the terrace was to be sought from them; EDC, Corpus Fund, Electricity Power Back up charges, stamp duty and registration charges of the Flats were also to be paid to the Land Owner; the ownership rights of the allotted plots/flats continued to be the property of the Opposite Party No.3 and the same were assigned to the Developer only for the purpose of construction, development and marketing; the Opposite Party No.3 was also to assist the prospective buyers in obtaining the financial assistances from the Banks/Financial Institutions; the delay in completion of the Project and handing over the possession of Flats, amounts to deficiency in service on part of the both the Opposite Parties and as such they are equally liable to refund the deposited amount and pay reasonable compensation to the Complainant.

15. We have given our thoughtful consideration to the rival contentions of the Learned Counsel for the parties.

16. The undisputed facts of the case are that the Complainant had purchased a Flat bearing Unit No.1, Block G at Ground Floor from the Opposite Parties on 18.11.2012 and an agreement was executed between the parties on 19.5.2014. In terms of the Clause C of the Agreement, the possession of the purchased Flat was to be handed over to the Complainant within a period of 18 months from commencement of construction with grace period of six months subject to the obtaining of the requisite approvals and sanctions. However, the Opposite Parties had miserably failed to complete the Project and hand over the possession of the Flat, complete in all respect to the Complainant within the agreed time. As there was no possibility for completion of the Project in the near future, the Complainant requested the Opposite Party to refund the amount deposited by her with them but the said request was not acceded to and accordingly she filed a complaint before the State Commission.

17. The bone of contentions of the Learned Counsel for the Opposite Parties is that they do not have any privity of contract with the Complainant. According to the Developer, they were doing the construction work on behalf of the Opposite Party No.3, the Land Owner and the defence of the Opposite Party No.3 is that the Project was not a joint venture/partnership and as such they are not liable to refund the deposited amount to the Complainant with any compensation and it is the Developer who is responsible to refund the deposited amount since the same was received by them.

18. To resolve the controversy regarding liability to refund the deposited amount to the Complainant, we would like to produce below some of the relevant Clause of the Agreement executed between the Complainant and Developer as well as Memo of Understanding executed between the Developer and the Land Owner:-

Relevant Clauses of the Agreement

“A. DEFINITIONS

“Basic infrastructure work” shall means the internal roads connecting the said plot to the public road, provision of sewer line/water supply line/Electricity line/storm water drains outside the said plot. This basic infrastructure will be provided by AIPL Ambuja. “Common Area of Township” means the internal roads including street lights, utility corridor landscaping, greenery and green space to be provided by AIPL Amubja in the Township as per the sanction plan. (emphasis supplied)

“Township” means a residential township being developed by the AIPL Ambuja on the land situated at Khanna, District Ludhiana, Punjab in pursuant to the approvals/permissions granted by Government of Punjab, comprising of pilot(s)/Villa(s)/independent residential floor(s)/G+2/School/ convenient shopping etc.

2(c) The Allottee shall be responsible to pay ED/IDC as applicable and demanded by the Company and the Company shall ensure that all such demand is on the basis of the demand raised by AIPL Ambuja.

2(1)(ii) Payment of all amounts due and payable by allottee(s) upto the date of such possession including stamp duty and other charges etc. to the company and payment of corpus fund and maintenance charges to AIPL Ambuja.

G(1) The general upkeep and maintenance of the exteriors of the said Unit as allotted, shall be the responsibility of the allottee(s). However, in case of any negligence/non-maintenance, AIPL Ambuja shall undertake suitable cleaning and upkeep thereof at the cost of the Allottee(s)/ and recover the same from the Allottees.

J (3) In case any construction on the terrace of the building becomes permissible under the applicable by-laws/rules/regulation etc. the Allottee of the Second Floor Unit shall have the exclusive rights to construct the same subject to approval from the AIPL Ambuja and Regulatory Authority.

MEMO OF UNDERSTANDING DATED 29.09.2012

”(2) Apart from the above payment, the second party (Developer) is also liable to pay all other charges such as EDC (as applicable) Corpus Fund, Maintenance Charges, Electricity Power Back up, Stamp Duty and Registration Charges etc. for plots and independent floors as per general terms and conditions, which the second party has ready understand and acknowledged.”

The Second Party (Developer) is free to execute sale agreement with the prospective buyer, subject to terms and conditions of this MOU. The First Party shall give consent to executive such agreement as the First Party has ownership of the said plots and it will authorize Second Party to execute such agreement on behalf of the First Party. The draft of Sale Agreement to be provided by the Second Party for approval to the First Party. (emphasis supplied)

4.2 The First Party hereby agrees to arrange for approval of master layout plan for the said land/plots from the statutory authorities.

6.6 That the First Party shall assist the prospective buyers for seeking financial assistance from financial institutions/banks for purchase/development of the floors on the said plots.

6.9 The First Party shall facilitate approvals from the authorities for construction of floors and shall help the second party from time to time in obtaining various approvals from the government authorities.

6.10. The First Party undertakes to provide basic infrastructure such as connecting roads/STP/Water supply and electrical etc.

8. That notwithstanding anything contained in these presents, the Second Party shall indemnify the First Party against any from all losses, claims, damages, costs, charges and expenses that may be made, incurred or suffered by the First Party in relation to the said plots, constructions and development on the said plots and in relation thereto or any breach of any contract by Second Party or violation of any permissions, rules, regulations or bye-laws, arising out of any incidents or otherwise. (emphasis supplied)

9. That the First Party at the request of the Second Party shall sign, execute from time to time all plans, applications for layout etc. and all other documents that might be necessary for construction of floors and structure on the said plots for giving proper effect to this MOU and shall facilitate the Second party accordingly. However, the Second Party shall bear the costs, expenses etc. in this regard. “

FRESH MEMORANDUM OF UNDERSTANDING DATED 21.05.2015

“6.2.1.7. The Developer shall be obligated to manage and supervise the construction work of the Project, including managing and supervising the contracts and sub-contracts appointed in the Project. In case of any ambiguity or delay in construction of units or delay in offering possession of units to the prospective buyers/customers, the Developer shall be solely responsible. In case of any dispute/controversies arising out of the construction, from any one and/or any third party, the Developer shall keep indemnifying the owner.”

6.3.4. Obligation of Owner - Execution –

“Execute agreements for sale and conveyances and admit the execution thereof before the concerned Registrar for sale of the Units in favour of the Customers.

6.4.3 The owner reserves the exclusive right of proportionate allocation of the consideration received as and from the customers/and/or Developer, into different heads and the Developer shall not raise any objection to that.

6.4.4. The Developer shall open an Escrow Account with the HDFC Bank at Sector 54, Gurgaon Haryana or any other Bank as the parties may mutually decide, which shall be a separate account. The Developer shall receive all monies from the sale, transfer and/or lease of the Units in the Project from the Customers and prospective purchasers in the name of the said account by cheque or demand draft and shall deposit entirely of the receipts received/receivable in such said Account within 7 days from receipt thereof.

6.4.4.1.1. An amount of equaling to 45% of the total received amount shall be transferred towards sale consideration of the plot in the current account of Owner bearing No. 409000186240 maintained with “the Ratnakar Bank Ltd. “

19. A bare perusal of the afore-extracted Clauses of the Agreement executed between the Developer and the Complainant on 19.05.2014 and the Memorandum of Understandings executed between the Developer and the Opposite Party No.3, Land Owner on 29.09.2012 and 21.05.2015, would reveal that the Opposite Party No.3 was developing a Township under the name and style of “Dream City” for which purposes they entered into a Memorandum of Understanding dated 29.09.2012 with the Opposite Party No.2 Developer. The Developer advertised the Project and invited the applications for purchase of the Plots/Flats from the Public. The Opposite Party No.3, Land Owner was under an obligation to execute the Agreements for sale and conveyance with the prospective Flat Buyers as contemplated in afore-extracted Clause 6.03.04. Further, in terms of the various Clauses of the Agreement and MOUs, the Opposite Party No.3, Land Owner was to provide the basic infrastructure facilities for the Project such as internal roads connecting the Plot in question with the public road, provision of sewer line/water supply line, Electricity Line etc. The Flat Purchasers were required to pay EDC, Corpus Fund, Maintenance Charges, Electricity Power Back Up, Stamp duty and Registration Charges to the Opposite Party No.3 Land Owner. The Draft Agreement to be executed between the Developer and the Complainant was also approved by the Opposite Party No.3. The Opposite Party No.3, Land Owner, was duty bound in terms of the various Clauses of the Agreement and MOUs to facilitate the Developer in obtaining approvals from the Competent/Government Authorities for construction of Project. The Opposite Party No.3 was to assist the prospective buyers in obtaining financial assistance from the Financial Institutions/Banks for purchase/development of the floors. Further, on the request of the Developer, the Opposite Party No.3 was committed to sign all the documents and execute all plans and applications which were required for construction of the floors. Apart from this, the amount received from the buyers towards the sale consideration of the Flat/Plot, was to be deposited in an Escrow Account and 45% of the said deposited amount was to be transferred in the current account of the Owner. The most pertinent and imperative aspect of the afore-extracted Clauses is that the Opposite Party No.3 was entitled to recover any loss or damage suffered by them on account of any negligence, inaction or omission on the part of the Developer. Further, by terminating the Memorandum of Understanding dated 21.05.2015, the Opposite Party No.3, Land Owner has entered into the shoes of the Developer and, therefore, are liable to compensate the Complainant for the loss suffered by her. Under all these circumstances, it cannot be construed by any stretch of imagination that the Project was not a joint venture/partnership and as such both the Opposite Parties cannot be absolved from their liabilities to compensate the Complainant on the lame excuse of absence of privity of contract with the Complainant. With regard to the issue of absence of privity of contract between the Complainant and the Opposite Parties, a reference can be made to the recent decision of the Hon’ble Supreme Court in “Laureate Buildwell Pvt. Ltd. vs. Charanjeet Singh” [2021 SCC OnLine SC 479], in which it has been held that the absence of privity of contract is not a bar for maintaining a Complaint against a Service Provider, by observing as under:-

“25. In another decision, Canara Bank v. United India Insurance Co. Ltd. (2020) 3 SCC 455, the issue which this court had to consider was whether the insurer could repudiate liability in respect of a fire which destroyed farm produce kept in a cold storage, when the farmers had no privity with the insurer, but with the cold storage, and who availed credit on the security of the crop. The court held as follows:

“28. Taking the issue of privity of contract, we are of the considered view that as far as the Act is concerned, it is not necessary that there should be privity of contract between the Insurance Company and the claimants. The definition of “consumer” under Section 2(d) quoted hereinabove is in two parts. Sub-clause (i) of Section 2(1)(d) deals with a person who buys any goods and includes any user of such goods other than the person who buys such goods as long as the use is made with the approval of such person. Therefore, the definition of consumer even in the first part not only includes the person who has purchased but includes any user of the goods so long as such user is made with the approval of the person who has purchased the goods. As far as the definition of “consumer” in relation to hiring or availing of services is concerned, the definition, in our view, is much wider. In this part of the section, consumer includes not only the person who has hired or availed of the services but also includes any beneficiary of such services. Therefore, an insured could be a person who hires or avails of the services of the Insurance Company but there could be many other persons who could be the beneficiaries of the services. It is not necessary that those beneficiaries should be parties to the contract of insurance. They are the consumers not because they are parties to the contract of insurance but because they are the beneficiaries of the policy taken out by the insured.”

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It is therefore evident that the Consumer Protection Act, 1986 was conceived as a legislation to address complaints of consumers (an expression defined and interpreted widely) and provide a forum for their quick redressal, and, furthermore, wherever third parties have claimed relief, technicalities have been brushed aside consistently, by this court. Thus, even after an original consumer is indemnified for a fire accident, the insurer can maintain a complaint against the carrier/service provider, and claim damages (of course along with the insured party). Likewise, absence of privity of contract is not a bar for maintaining a complaint against a service provider, by a third party who suffers an incident, which is otherwise covered by an agreement…...”

20. Applying the ratio laid down by the Hon’ble Supreme Court in Laureate Buildwell’s case (supra), we are of the view that the Complainant being the beneficiary or user of the Project, is a consumer against both the Opposite Parties. It is not in dispute that the Complainant purchased the Flat in question on 18.11.2012 and no offer of possession was made to her. Even, this Commission, vide Order dated 19.02.2018 passed in First Appeal No. 1855 of 2017 filed by the Developer, has observed that there is hardly any chance of the completion of the Project and accordingly dire

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cted the Developer to deposited the entire amount received from the Complainant with interest @9% p.a. The Complainant was also granted liberty to withdraw a sum of Rs.35,00,000/- out of the said deposit. However, the directed amount had not been deposited by the Developer in compliance of the Order dated 19.02.2018. Keeping in view the Judgment passed by this Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainant whether he/she wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, we are of the view that it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation. Further, the Hon’ble Supreme Court in the case Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), while observing that the Complainant cannot be made to wait indefinitely for the delivery of possession, has held as under:- “……….It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the Opposite Party, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.” 21. In the light of the reasons recorded above, we are of the considered opinion that there is no infirmity and illegality in direction given by the State Commission to the Opposite Parties to refund the amount deposited by the Complainant with interest @12% p.a. as per Rule 17 of PAPRA as well as catena of the judgments passed by this Commission and the Hon’ble Supreme Court granting interest @12% p.a. at the relevant time. However, we set aside the direction given by the State Commission to the Opposite Parties to pay Rs.3,00,000/- as compensation for the mental agony and harassment suffered by Complainant as the compensation cannot be granted on different heads as held by the Apex Court in plethora of cases which view has been confirmed in the recent judgment of the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda – II (2019) CPJ 117 (SC). Consequently, the First Appeals are disposed of in above terms. The pending application, if any, shall also stand disposed of. No orders as to costs. 22. The Registry is directed to release the sum of Rs.15,00,000/- deposited by the Opposite Party No.3/Appellant in First Appeal No. 1545 of 2017 along with interest accrued thereon to the Complainant. The balance amount in terms of this order, shall be paid by the Opposite Parties to the Complainant within a period of eighth weeks from today failing which the entire amount shall attract interest @14% p.a. for the same period. 23. The Registry is also directed to release the amount of statutory deposit made by the Appellants in both the Appeals, alongwith accrued interest, in favour of the Complainant.
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