Raj Shekhar Attri, President
1. This compliant has been filed by the complainant, seeking refund of the amount paid by her to the tune of Rs.22,50,000/- to the opposite party towards purchase of a plot measuring 250 square yards, in the project launched by it under the name and style unit €˜Palm Spring€™, New Chandigarh, Mohali, Punjab, on the ground that it neither executed buyer€™s agreement nor offered possession thereof within a reasonable period of two to three years from the date of booking i.e. from 23.04.2014, for dearth of construction and development activities. It has been stated that it has also come to the knowledge of the complainant that the opposite party did not possess requisite permissions/ sanctions in respect of the project in question and the same was launched in violation of the provisions of relevant Acts, Rules etc. applicable to the projects situated in Punjab.
By stating that the aforesaid act and conduct of the opposite party amount to deficiency in providing service and adoption of unfair trade practice, this complaint has been filed by the complainant.
2. The claim of the complainant has been contested by the opposite party on numerous grounds, inter alia, that she has concealed material facts from this Commission; that she being investor, did not fall within the definition of €œconsumer€; that this Commission did not vest with territorial jurisdiction to entertain this complaint; that the complaint filed is beyond limitation; that the complainant was requested number of times to come forward to make remaining payment, select plot, and sign buyer agreement but she failed to do so; that the project of the opposite party has been registered under the Real Estate (Regulation and Development) Act, 2016 (in short, the RERA) on 15.09.2017 as such dispute if any has to be decided under RERA only and not by this Commission; that as per Section 35 of the PAPR Act, jurisdiction of Civil Court is barred to entertain and decide any question relating to matters arising there-under; that because complicated questions of facts and law are involved in this complaint, as such, the same cannot be entertained by this Commission under summary proceedings; that the complainant was defaulter in making payment as a result whereof number of reminders were sent to her in the matter; that it was not the sale of goods as such consumer complaint is not maintainable; and that time was not the essence of contract.
3. On merits, it has been stated that the project was approved on 22.03.2013 and the formal agreement was signed with the Government of Punjab on 14.06.2013; that thereafter some more land was added to the project, for which completion period was given upto 13.06.2018, vide supplementary agreement dated 16.06.2016 executed with the Government; that later on exemption from the applicability of provisions of the Punjab Apartment and Property Regulation Act, 1995, (PAPR Act) stood granted by the Government on 25.01.2017 and as such all the irregularities committed by the company stood compounded, as exemption granted will have retrospective effect; that delay if any in issuance of the said notification on 25.01.2017 was procedural and it will relate back from the day when the project in question had been launched by the opposite party; that once the State Government has not held that the opposite party had violated the provisions of PAPR Act, as such, this Commission cannot go into the said question; that on request made by the opposite party, the Competent Authority extended completion period of the project upto 31.07.2019, which was further extended upto 13.06.2020 and now it has been further extended upto 31.12.2022 and as such, this complaint filed is premature; and that as on date the opposite party has have obtained all permissions/approvals in respect of the project in question and it has not caused any prejudice to the complainant if the company was not having permissions/approvals from the competent Authorities to launch the project at the initial stage. It has been stated that claim of the complainant seeking higher rate of interest on the deposited amount is totally unjustified. Rather, it should be as specified under Section 19 of the RERA i.e. MCLR + 2% interest or @9% p.a. as has been awarded by the Hon€™ble Supreme Court in DLF Homes Panchkula (P) Ltd. vs Sushila Devi, 2019 (Civil Appeal Nos. 2285-2330 of 2019), decided on 26 February 2019, and no other relief should be granted to the complainant.
4. However, ironically, it has been claimed in the reply that the opposite party is trying to complete the project, as early as possible i.e. within the extended period, as the development work is going on in full swing and work with regard to provision of basic amenities such as sewerage, water, electricity etc. has been completed in major part of the project and remaining is near completion and that some wings of flats have already been delivered to the customers; and that the opposite party is trying to complete the development work at the earliest. It has been alleged in the reply that the project was delayed on account of red-tapism in the offices of different departments of the Government and also due to the business and political rivalries and that was why; the competent authorities delayed in granting approvals/sanctions. While applying the theory of force majeure circumstances (which means irresistible circumstances beyond ones control such like act of God), it has been alleged that delay in delivery of possession of plots occurred, also on account of shortage of building material because of ban on mining by the Government concerned; and that the Govt. and Banks have come forward to help the builders/developers. Remaining averments of the complaint have been denied. Prayer has been made to dismiss the complaint with costs
5. The parties led evidence in support of their case.
6. We have heard the contesting parties and have gone through record of the case, including the written arguments filed by the parties, very carefully.
7. First coming to the objection regarding territorial jurisdiction, it may be stated here that perusal of payment receipts dated 23.04.2014, Annexure C-3 in the sum of Rs.9 lacs; and 23.04.2014 in the sum of Rs.25000/- have been issued by Chandigarh Office of the Company i.e. Manohar Infrastructure and Constructions Pvt. Ltd., SCO No.139-141, First Floor, Sector 17-C, Chandigarh, meaning thereby that the opposite party was actually and voluntarily residing and carrying on its business, at the said Chandigarh Office for gain. Not only as above, the said fact is further fortified when we perused the information dated 13.01.2020 (at page 105 of the paper book) placed on record by Counsel for the opposite party alongwith the reply, wherein the address of the Company has been mentioned as SCO No.139-141, Sector 17-C, Chandigarh-160017 only. Thus, this Commission at Chandigarh has territorial jurisdiction to entertain this complaint. Objection taken by the opposite party 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€™,
16. 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 party 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 it failed to discharge its onus, hence we hold that the complainant is a consumer as defined under the Act.
18. In this view of the matter, objection taken by the opposite party stands rejected.
9. There is no dispute with regard to purchase of plot in question by the complainant in the said project of the opposite party. There is also no dispute with regard to the fact that despite the fact that in the first instance, amount equal to 30% of the total sale consideration stood received by the opposite party from the complainant, yet, neither plot no. was allotted nor agreement were executed between the parties nor thereafter development work was completed at the project site and possession has also not been offered till date.
10. The complainant, through her Counsel, has submitted that the opposite party failed to provide plot no. and agreement for signatures of the complainant, within a reasonable period after booking of the plot or even thereafter, whereas, on the other hand, the opposite party, through its Counsel, has stated that the complainant was requested number of times to come forward for allotment of plot and execution of the agreement and make remaining payment but she failed to do so.
11. It may be stated here that perusal of record reveal that at the time of booking of the plot in question on 23.04.2014, the opposite party had already received an amount of Rs.13,50,000/-, which is equal to 30% of the total sale consideration of Rs.45 lacs, yet, there is nothing on record that thereafter agreement was even sent to the complainant for her signatures what to speak of execution thereof. Once the opposite party, in the first instance, had already received substantial amount which was equal to 30% of the total sale consideration from the complainant, it was required of it to allot plot; execute agreement under law within a reasonable period say two to three months; raise demands in accordance with the stage of development at the project site; complete the development work; obtain completion certificate from the competent authorities; and then deliver possession of the plot in question to the complainant. Though it has been claimed by Counsel for the opposite party that the complainant was sent number of letters/reminders to come forward for allotment of plot or for execution of agreement and that she was defaulter in making payments, yet, not even a single document has been placed on record by it, to prove its stand. Thus, in the absence of any documentary evidence in that regard, bald assertions made by the opposite party have no value in the eyes of law.
12. In the written reply filed, it has been candidly stated by the opposite party that still the development work is going on at the project site and as per Notification dated 30.01.2020, it is liable to complete the same by 31.12.2022. Thus, the act of raising demands and receiving substantial amount, as referred to above, in the absence of development work; without allotment of plot and executing the agreement, was not only unfair but illegal, which act also contravenes Section 6 (1) of the PAPR Act, which lays a duty on the opposite party to execute the agreements for sale as per law, after obtaining the maximum sale consideration of 25%. It is apposite here to reproduce the said provision: -
€œ6. Contents of agreement of sale:- (1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act No. 16 of 1906) ;
Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots.
13. The opposite party was legally bound under law to execute the agreement and to get the same registered under the Registration Act 1908, after obtaining 25% of the sale consideration, but in this case, the said provision has been violated. The opposite party also cannot take shelter under the exemption certificate from the provisions of PAPR Act, which was issued in its favour only on 25.01.2017 i.e. much after booking of the plot in question. It has no where been proved that the said exemption will have retrospective effect but in our considered opinion, it will have prospective effect only. The opposite party was deficient in providing service and adopted unfair trade practice on this count.
14. Furthermore, to defend the objection raised by the complainant to the effect that at the time of booking of the plot and collecting money from the complainant, the opposite party was not having requisite licences, approvals and permissions from the competent authorities, it has been stated by the opposite party, through its Counsel, that it would not make any difference regarding the title of plot, if the project was approved later on, as all the irregularities stood compounded when notification exempting the provisions of PAPR Act was issued in favour of the company on 25.01.2017. We do not agree with the said assertion.
In the first instance, the candid admission of the opposite party in its reply to the effect that if the State Govt. has not taken any action against the violation of terms and conditions of PAPR Act, and as such it has not caused any prejudice to the complainant in relation to the said violations, is sufficient to prove the case of the complainant. This admission in itself leaves no doubt that money has been collected from the complainant and other prospective buyers, with animus of cheating and fraud, by launching the project and selling units/plots therein by violating the terms and conditions of PAPR Act, which act cannot be cured by obtaining the exemption from the provisions of PAPR Act, at the subsequent stage. It is settled law that a builder cannot take advantage of the situation by simply saying that the statutory approvals had not been obtained from the Government Authorities or that the same had been delayed by the competent Authorities. The builder is duty bound to ensure that before accepting the amount of booking, necessary permission/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.
15. Surprisingly, the Government of Punjab, Department of Housing and Urban Development (Housing II Branch) i.e. the competent Authority was well aware of the fact that the project has been started without permissions and huge money has been collected and usurped by the opposite party from the innocent buyers, yet, it did not hear the aggrieved consumers before granting exemption to the project on 25.01.2017 from the provisions of PAPR Act. As such, the said act of the competent authority is against the principles of natural justice; fair play and not binding on the complainant and other prospective buyers. If the competent Authorities failed to take any action under relevant Rules and Regulations against the company, no benefit can be taken out there-from by the opposite party in this complaint filed by the complainant under Consumer Protection Act, for deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite party.
16. Now coming to non-offering of possession of the plot to the complainant, it may be stated here that the opposite party in its written reply in para nos.12,20, 28 and 30 has very candidly admitted that development work at the project site is still going on and is near completion. However, except some photographs (most of which pertain to the flats), perusal of which too reveal that still a lot of work is pending to be done at the project site, no other cogent and convincing evidence has been placed on record, to prove that the development is at the advance stage and that basic amenities such as roads, electricity, sewerage etc. are near completion, as alleged in the reply. Infact contrary stands have been taken by the opposite party in its written reply. In para nos. 12,20, 28 and 30, referred to above, it has been stated that the development work is near completion, whereas in para no.28 (preliminary objections), it has been stated that the competent authorities have given extension for completing the project vide letter of extension dated 13.07.2018, Annexure O-9. However, at the same time, it has also been stated by the opposite party in para no.12 of its reply that it has moved an application before the competent authority seeking extension for completion of the project, which is under consideration and is likely to be granted. Thus, despite the fact that the plot in question had been booked in 2014 and now it is March 2021, still the opposite party is saying that it needs more time for completing the project. Burden to prove that the project has been completed and the area/site, in question, is fully developed or is about to complete, is on the builder/opposite party. 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. In the present case, perusal of contents of the written reply filed by the opposite party, reveal that self-contradictory pleas have been taken with regard to delay in offer of possession of the plot in question to the complainant. In some paragraphs it has been stated that delay took place in offering possession because there was delay on the part of the Government Departments in sanctioning approvals/permissions; due to shortage of construction material etc. etc. whereas, on the other hand, it has also been stated that since more land was added to the project, as such, permission was sought from the competent Authorities for extension of time for completing the project in question, which is under consideration and likely to be granted.
Thus, perusal of contents of reply filed by the opposite party clearly go to show that it was not serious in completing the project wherein the plot in question was sold to the complainant and is now taking bald excuses for causing delay, just with a view to defeat the genuine claim of the complainant. Under these circumstances, it is held that the opposite party by neither allotting plot no.; nor executing agreement within the stipulated period; nor completing the development work even by the date when this complaint was filed; and by not delivering possession of the plot, despite the fact that the same was booked as far as back in 2014, indulged into unfair trade practice and was also negligent and deficient in providing service to the complainant.
17. At the same time, it is also held that plea taken by the opposite party to the effect that delay took place in offering possession because there was delay on the part of the Govt. Departments to sanction approvals/permissions; shortage of construction material due to alleged ban on mining etc. does not carry out any weight for the reasons recorded hereinafter.
First coming to delay in approvals on the part of the Govt. Departments, it may be stated here that not even a single letter has been placed on record by the opposite party showing that it ever reported the Authorities concerned that there is a delay on its part in granting sanctions/approvals in respect of the project in question on account of business rivalries or red-tapism or that any such letter, by which it has have given notice to the said Authorities that in case the needful is not done in a prescribed time, the Company shall move to the appropriate platform of law, in the matter.
Now coming to the plea regarding shortage of construction material, it may be stated here that nothing has been placed on record by the opposite party to prove that it was unable to procure the said construction material, in adequate quantity. There is no evidence of the opposite party having invited tenders for supply of construction material and there being no response to such tenders because of the alleged ban on mining. A similar plea with regard to shortage of building material as a cause for delay in delivery of possession of the plots/units was taken by a builder before the Hon`ble National Consumer in Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints), decided on 14 Aug 2015, which was rejected and the complaint was allowed in favour of the complainant.
18. As per settled principle of law laid down by the Hon€™ble Supreme Court of India, in the cases where no agreement has been executed by the builder after booking of the plot/unit, then the reasonable period of two to three years has to be taken into account for completion of the construction & development activities and delivery of possession to the allottees/buyers thereof. Since, in the present case also, no agreement has been executed between the parties, as such, possession of the plot in question should have been delivered to the complainant by the opposite party, within a maximum period of three years from the date of booking i.e. latest by 22.04.2017 (date of booking being 23.04.2014), which has not been do so far and still the opposite party is seeking more time, on the ground that it has moved application seeking extension of time for completion of the project in question. The opposite party cannot seek benefit out of its deficiency in service by saying that since the application moved for extension of time sought for completion of project before the competent authority is under process, this complaint is premature. In the present case, the opposite party failed to convince this Commission, that it actually encountered force majeure circumstances (which means irresistible circumstances beyond ones control such like act of God etc.) as a result whereof, delay in handing over possession of the plot occurred. As such, plea taken by the opposite party, in this regard, is rejected.
19. Now coming to the objection taken by the opposite party with regard to jurisdiction of this Commission and maintainability of this complaint, on the ground that complicated questions of facts and law are allegedly contained therein, it may be stated here that this is a simple case of non allotment of plot no.; non obtaining of necessary approvals before launching the project in question; non-execution of agreement under the provisions of Section 6 of the PAPR Act within the reasonable time or even till date, despite receiving about 50% of the total sale consideration; and non-delivery of possession of plot to the complainant by the opposite party within a reasonable period from the date of booking, thereby causing financial loss, mental agony and harassment to the complainant. The acts, omissions and commissions on the part of the opposite party amount to deficiency in providing service as well as negligence and adoption of unfair trade practice.
20. An objection was also raised by the opposite party to the effect that in the face of registration of the project under the RERA and also the provisions of Section 35 of the PAPR Act, jurisdiction of this Commission is barred to entertain this complaint arising out in respect of the plot in question located in the said project. First coming to the objection taken that in the face of registration of project under RERA this consumer complaint is not maintainable, it may be stated here that the same does not merit acceptance, in view of the ratio of law laid down by the Hon€™ble Supreme Court of India in Civil Appeal No. 3581-3590 of 2020, M/s Imperia Structures Ltd. Vs. Anil Patni and another, decided on 02.11.2020, wherein it was held that the provisions of RERA Act does not in any way bar the Consumer Foras under the provisions of the CP Act to entertain any consumer complaint. Relevant part of the said order reads as under:-
€œ24. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.
25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force. 26. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 hereinabove, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called €œconsumers€ within the meaning of the CP Act, two questions would arise; a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything inconsistent in the provisions of the CP Act with that of the RERA Act.
*27. In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee , it was held by this Court:- €œThe proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court. *(See Bharat Bank Ltd. V. Employees and Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking *Corpn . On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint€€
This view has been reiterated by the Hon€™ble Supreme Court of India in Civil Appeal No. 5785 of 2019, Ireo Grace Realtech Pvt. Ltd. Versus Abhishek Khanna & Others, decided on 11.01.2021.
Now coming to the objection raised to the effect that in the face of provisions of Section 35 of the PAPR Act, this Commission is not competent to entertain this complaint, it may be stated here that in the present case, the opposite party was legally bound to allot plot no.; execute agreement and then deliver possession of the plot in question to the complainant and the nature of such transactions is covered by the expression €˜service€™. Our view is supported by the principle of law laid down in Narne Construction P. Ltd., etc. etc. Vs. Union of India and Ors. Etc., (supra) II (2012) CPJ 4 (SC) and Haryana Agricultural Marketing Board Vs. Bishamber Dayal Goyal and Ors., Civil Appeal No. 3122 Of 2006, decided by the Hon€™ble Supreme Court of India on March 26, 2014. Relevant part of Haryana Agricultural Marketing Board cases (supra) is reproduced hereunder:-
€œ€€.We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.. This Court in Narne Construction (P) Ltd. v. Union of India  referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta  and duly discussed the wide connotation of the terms €œconsumer€ and €œservice€ under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :
€œ5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):
€œ€when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act€.€
Furthermore, because it is an undisputed fact that the opposite party neither allotted plot no.; nor executed buyer agreement; nor delivered possession of the plot purchased by the complainant within a reasonable period of three years aforesaid, or even thereafter and no cogent and convincing reason has been given for the delay so caused, as such, it can very well be said that there is a denial of service to the complainant on the part of the opposite party, for which the complainant was at liberty to avail remedy by way of filing this consumer complaint. Our this view is supported by the principle of law laid down in Lucknow Development Authority Vs. M.K.Gupta, Civil Appeal No.6237 of 1990, decided on 5.11.1993, wherein the Hon€™ble Supreme Court held that where the developer is at fault in not delivering possession of an immovable property, the act so amounts to denial of service, and consumer complaint is maintainable before the Consumer Fora.
In view of above findings, we can safely say that the provisions of the RERA and PAPR Act will not debar the jurisdiction of this Commission in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the builder/developer. Since, this complaint involves the consumer dispute and the same is maintainable before this Commission, therefore, objection taken in this regard by the opposite party stands rejected.
21. As stated above, still, in the reply filed by the opposite party, it has been candidly admitted development work at the project site is not complete and that application has been moved seeking extension of time for completion of the project. This candid admission of the opposite party itself proves that it was not ready with the delivery of possession of the plot within a reasonable period of three years after booking of the plot in question or even by October 2020 when reply in this complaint was filed. Under these circumstances, we are of the considered opinion that we cannot make the complainant to wait for an indefinite period, in the matter, on the ground taken by the opposite party that time is not to be considered as essence of the contract. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date or if there is no agreement executed between the parties, then 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. It was also so said 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. The above 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 present case also, since there has been an inordinate delay in the matter, and still the opposite party is not sure as to by which date development will be completed and possession of the plot will be delivered to the complainant, as such, we are of the considered opinion that if we order refund of the amount paid alongwith interest from the respective dates of deposits that will meet the ends of justice.
22. The opposite party has placed reliance on DLF Homes Panchkula (P) Ltd. vs Sushila Devi, decided on 26 February, 2019 (Civil Appeal Nos. 2285-2330 of 2019 (@ SLP(C) NOS.928-930, 932-938, 940-967 and 969-976 of 2019), to say that since in this case, the Hon€™ble Supreme Court of India has awarded interest @9% p.a., on the amount so refunded therein, as such, this Commission cannot grant interest beyond that, in the present case also. We do not agree with the contention raised for the reasons recorded hereinafter. It may be stated here that we have gone through the contents of DLF Homes Panchkula (P) Ltd.`s case (supra) and found that the order passed therein, with regard to award of interest @9% p.a. on the amount to be refunded, was on the ground that all the parties agreed that the appeal be disposed of in terms of the directions issued by the Supreme Court of India in Himanshu Arora€™s case (Civil Appeal Nos. 11097- 11138 of 2018, decided on 19.11.2018), wherein also, the parties did not raise any objection with regard to grant of interest @9% p.a., aforesaid. Whereas in the present case, the complainant has prayed that she be granted interest, as sought for by her in her complaint, as the deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite party is writ large. Under these circumstances, plea taken by the opposite party in this regard, stands rejected.
23. As far as objection taken to the effect that the complaint filed is beyond limitation, it may be stated here that since it is an admitted fact that possession of the plot in question has not been delivered even by the date when this complaint had been filed before this Commission or thereafter, for want of development activities, as explained above, as such, objection taken with regard to limitation is not sustainable 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. As such, objection taken in this regard is rejected.
24. Now, we will deal with the question, as to what rate of interest should be awarded to the complainant, while ordering refund of amount paid. It may be stated here that co
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mpensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. The party concerned in refund cases is suffering a loss inasmuch as he/she had deposited the money in the hope of getting a flat/plot but he/she is deprived of same; he is deprived of the benefit of escalation of the price of that flat/plot; and also he would have to take out more money from his pocket for beating the escalation in price, for buying a new flat/plot and as such, compensation to be granted by way of interest on the deposited amount in such cases would necessarily have to be higher. Our this view is supported by the principle of law laid down by the Hon€™ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 wherein it was held that in a case where money is being simply returned, the purchaser is suffering a loss in as much as he had deposited the money in the hope of getting a flat/plot and therefore, he has been deprived of the benefit of escalation of the price and the compensation in such cases, therefore, would necessarily have to be higher. Furthermore, a similar question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver actual physical possession of residential units/plots, by the stipulated date or within reasonable period, fell for determination before 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. In the said case, the Hon`ble Supreme Court 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. The Hon€™ble National Commission also, 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, awarded interest @12% p.a. to the complainants, on the amounts to be refunded to them from the respective dates of deposits. It is therefore held that if interest @12% p.a. is awarded on the amount to be refunded to the complainant, that will meet the ends of justice. 25. For the reasons recorded above, this complaint is partly accepted with costs and the opposite party is directed as under:- i. Refund the amount of Rs.22,50,000/- to the complainant, alongwith interest @12% p.a., without deducting any TDS, 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. 22,50,000/- 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. 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. 26. However, it is made clear that in case the complainant has availed housing loan from any Bank(s)/financial institution(s) for making payment towards price of the plot in question, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant. 27. Certified Copies of this order be sent to the parties, free of charge. 28. The file be consigned to Record Room, after completion.