Padma Pandey, Member1. In brief, the facts of the case, are that the Opposite Parties developed a residential Group Housing Project under the name and style of €œThe Valley€ situated in Sector 3, Kalka €“ Pinjore Urban Complex. The one Sh.Naresh Kumar booked a flat in the project of the Opposite Parties on 14.02.2011 and paid an amount of Rs.5,47,000/-. He entered into Independent Floor Buyers Agreement dated 22.03.2011 (Annexure C-1) with the Opposite Parties, whereby, a unit/independent floor bearing No.E-4/2 SF (Second Floor) with a parking number P-2F was allotted. The total price of the said unit was Rs.46,19,699.76 for the saleable area of 1475 sq. ft. Thereafter, the complainant purchased the unit from Sh.Naresh Kumar and Agreement was executed between them on 30.04.2013 and submitted all the documents for transfer of the unit, in question. The Opposite Parties put the stamp on receipts that the unit, in question, endorsed in favour of the complainant vide application dated 30.04.2013 (Annexure C-2) but the Opposite Parties sent letter of endorsement to the complainant after nearly two years, wherein, date of transfer was mentioned as 28.01.2015 (Annexure C-3). The complainant raised the issue with the Opposite Parties but all in vain. The complainant paid the total amount of Rs.51,60,847/- vide receipts (Annexure C-4). It was further stated that the Opposite Parties mentioned illegal clauses in the Agreement and when objection was raised by the complainant, the Opposite Parties informed to forfeit the amount. As per Clause 11(a) of the Agreement, possession was to be delivered to the complainant within a period of 24 months from the date of execution of Agreement but despite repeated requests/visits, the Opposite Parties failed to deliver possession complete in all respects to the complainant, rather offered possession vide letter dated 08.06.2016 (Annexure C-5), which was just a paper possession. It was further stated that the Opposite Parties also published an advertisement in newspaper €œHindustan Times€ dated 13.01.2014, wherein, the builder again made another promise to hand over possession in 2014 but also failed to hand over the same. The complainant sent a letter dated 21.01.2019 to the Opposite Parties to refund the amount alongwith interest but to no avail. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under the Consumer Protection Act (in short the €˜Act€™ only), was filed.2. The Opposite Parties in their written statement took up certain preliminary objections, inter alia, that the complainant has concealed material facts from this Commission; that the complainant being a second allottee has not made the first allottee a party in the present complaint, as such, the complaint may be dismissed for non joinder of the necessary party ; the complainant, being investor, had purchased the unit from original allottee for earning profits, as such, he would not fall within the definition of a consumer ; that in the face of existence of arbitration clause in the agreement this consumer complaint is not maintainable; that this complaint is also not maintainable before this Commission as the complainant is seeking modification/re-writing of terms and conditions of the agreement and as such it can be adjudicated by civil court only; that this Commission did not vest with territorial jurisdiction; that the complaint filed is beyond limitation as possession of the unit in question had been delivered as far as back vide letter dated 08.06.2016 ; that he is a defaulter as he failed to pay the amount since 08.06.2016 thereby guilty of violation of terms and conditions of the agreement and as such is not entitled to any relief and on the other hand is liable to pay holding chargesOn merits, it was admitted that the complainant purchased the unit, in question, from the original allottee. It was stated that the complainant is a subsequent allottee as he purchased the said property from one Naresh Kumar and got the said property transferred in his name on 28.01.2015 vide endorsement (Annexure R-1). It was further stated that the complainant misleading this Commission that he paid the amount of Rs.51,60,847/-, whereas, he actually deposited an amount of Rs.45,00,847/- as three cheques, which mentioned in para No.3 of the reply, deposited by the complainant were dishonoured. It was further stated that as per clause 11(a) of the Agreement, the Company endeavoured to complete the construction of the said project within 24 months unless there was delay due to a force majeure condition or due to reasons mentioned in 11(b) and 11(c) of the Agreement. It was further stated that there was a stay on construction in furtherance to the direction passed by the Hon€™ble Supreme Court vide order dated 19.04.2012 in SLP No. 21786-88/2010. In view of the aforesaid order passed by the Hon€™ble Supreme Court, the construction activities at the project site had to be put in abeyance and no further activity was carried out. It was further stated that due to the said stay passed by the Court, the work force, which was paid on a daily basis, migrated to other places. Subsequently, upon the order dated 12.12.2012 passed by the Hon€™ble Supreme Court vacating the stay granted and dismissed the Special Leave Petition, the construction activity on the project of the Opposite Party could be resumed. However, there was considerable difficulty for the Opposite Parties to gather the work force and to resume the construction activity in the said project, as such, it took several months for gathering the requisite work force. Therefore, the delay in handing over possession was a result of force majeure conditions, as covered in the application for allotment as well as Agreement executed between the parties. It was further stated that the Opposite Parties have made no false promises to cheat or extract money from the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.3. The Parties led evidence, in support of their case.4. We have heard the Counsel for the complainant and Sh.Shiv Kumar, Advisor (Legal) of the Opposite Parties, and have gone through the evidence and record of the case, carefully.5. First, we will deal with the objection raised by the opposite parties that the complainant did not fall within the definition of €˜consumer€™. It may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainant has purchased the unit in question to indulge in €˜purchase and sale of 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 complainant is a consumer. Objection taken in this regard, as such, stands rejected.6. The next question, that falls for consideration, is with regard to non joinder of necessary parties i.e. the original allottee is concerned, it is, no doubt, true that initially unit was booked by Mr.Naresh Kumar in the project of the Opposite Parties in the year 2011 and Agreement was executed between the original allottee and the Opposite Parties on 22.03.2011. Thereafter, the said unit was purchased by the complainant i.e. Mr.Ravi Kumar from the original allottee. After going through the record, we do not find any merit on the objection raised by the Opposite Parties because after making payment, the complainant stepped into the shoes of original allottee and are now owner of the said unit in dispute, as such, there is no need to make the original allottee as a party, therefore, the said objection raised by the Opposite Parties stands rejected.7. Now we will deal with the objection regarding territorial jurisdiction of this Commission, 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 this case, it is clearly evident that the agreement dated 22.03.2011 in respect of the unit in question has been executed between the original allottee and the Opposite Parties at Chandigarh. Not only as above, even the receipts dated 14.02.2011 (Annexure C-2), receipts at page Nos.61 to 64 have been issued by the Company at their office at Shop No.101-102, DLF City Centre, IT Park, Kishan Garh, Chandigarh, receipts (at page Nos.65 to 71) issued by the Company from their office i.e. Chandigarh Technology Park, Plot No.2, Tower-D, Ground Floor, Chandigarh. Not only this, even the possession letter dated 08.06.2016 (Annexure C-5) issued by the Opposite Parties from their Chandigarh office i.e. SCO No.190-191-192, Sector 8-C, Chandigarh. As such, objection taken with regard to territorial jurisdiction stands rejected.8. There is no dispute with regard to the fact that on 14.02.2011, the previous owner i.e. Sh.Naresh Kumar booked the unit in question in the project of the Opposite Parties. Thereafter, unit was transferred in the name of the complainant after completing the document vide endorsement dated 28.01.2015 (Annexure R-1). According to the complainant, he paid an amount of Rs.51,60,847/-, whereas, according to the Opposite Parties, the complainant actually paid an amount of Rs.45,00,847/- and, possession whereof was required to be delivered within a period of 24 months from the date of execution thereof i.e. latest by 22.03.2013 as per clause 11 (a) of the Agreement dated 22.03.2011. It is also not in dispute that the Opposite Parties miserably failed to offer possession of the said unit by the promised date and it was offered after a long delay of more than three years vide letter dated 08.06.2016, Annexure R-3. According to the complainant, it is only paper possession and not more than that. Thus, we are of the considered opinion that the complainant was not obliged to take over the said possession, even if it is assumed for the sake of arguments that the same was genuine/complete in all respects. Our view is supported by the principle of law laid down by the Hon€™ble Supreme Court of India in Civil Appeal No.12238 of 2018 (Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan), decided on 02.04.2019, wherein it was held as under:-€œ9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant €“ Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent €“ Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent €“ Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired€€.€Similar view had been taken by the Hon€™ble National Commission in M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, as under:-€œI am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery€.Furthermore, in another case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, similar view was reiterated by the Hon€™ble National Commission, as under:-€œI am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.€In the present case also, there is a delay of more than 3 years in offering possession of the unit in question, as such, in view of settled law that non-delivery of possession of unit 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, if we order refund of the amount paid alongwith suitable interest that will meet the ends of justice. The complainant is therefore held entitled to get refund of the amount paid alongwith interest, from the respective dates of deposits till realization.However, to wriggle out of the situation, the Opposite Parties through their Advisor (Legal) have taken a plea that delay in possession took place on account of the force majeure circumstances having been faced by them which were beyond their control i.e. there was stay on construction activities by the Hon€™ble Supreme Court, for the period from 19.04.2012 to 12.12.2012 and after vacation thereof, it took several months to arrange/recall the labourers/masons to restart work at the project site; and also that there was delay on the part of the competent authorities to grant statutory approvals. We do not agree with the plea taken for the reasons to be recorded hereinafter.9. First coming to the stay aforesaid, it is true that in some litigation, the Hon€™ble Supreme Court of India stayed construction activities and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. In the present case, Agreement was executed between the parties on 22.03.2011 and as per clause 11 (a) thereof possession of the unit in question was to be delivered within a period of 24 months i.e. latest by 22.03.2013. Under above circumstances, if we add 8 months more on account of suspension of construction activities for the said period, in view of stay aforesaid, and also over and above that 8 months, we give more 4 months of grace period which might have consumed for arranging/recalling the labourers/mason for work i.e. total 12 months over and above 24 months aforesaid, to the Opposite Parties then also possession of the unit in question should have been offered to the complainant latest by 22.03.2014 but it has not been done so and the same was offered only on 08.06.2016. No justification, whatsoever, for delay in offering possession beyond 22.03.2014, has been given by the Opposite Parties.10. The plea taken by the Opposite Parties to the effect that delay in handing over possession of the unit took place also due to delay in granting statutory approvals by the competent authorities, the same being absolutely beyond their control, is not tenable. As stated above, the unit in question was sold in the year 2011 and Agreement was executed on 22.03.2011. The Opposite Parties should have obtained all the approvals/sanctions before booking the said unit. To the contrary, admittedly, the service plan submitted by the company was received on 14.08.2014 and also approval with regard to revision of layout plan was received on 06.09.2013, meaning thereby that the project was sold in 2011 without obtaining necessary approvals and finalization of service and layout plans, which act amounts to unfair trade practice on the part of the Opposite Parties. If the Opposite Parties chose to accept booking without obtaining statutory approvals, they are to blame to themselves only. The purchaser of the units, who had nothing to do with the revision of layout or service plans, cannot be penalized, by postponing the possession. Our this view is supported by the observations made by the Hon€™ble National Commission in M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17 Dec 2015. Relevant part of the said order reads as under:-€œ€..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents. In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA. If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout. The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot€..€It has thus been proved that money has been collected from the prospective buyers including the original allottee starting from 2011 itself without obtaining statutory approvals. Collecting money from the perspective buyers and selling the project, without obtaining the required permissions/approvals is an unfair trade practice on the part of the project proponent. It was so said by the Hon€™ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads as under:-€œ€€€€€.This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency€€€€€At the time of arguments also, Sh.Shiv Kumar, (Advisor) Legal of the Opposite Parties failed to apprise this Commission, as to why the Opposite Parties were in a hurry to sell the project in the absence of statutory approvals aforesaid and also why the company failed to deliver possession of the unit even by 22.03.2014 i.e. within a period of 12 months over and above the committed date (22.03.2013). Under these circumstances, plea taken by the Opposite Parties justifying the delay aforesaid in offering possession of the unit till 08.06.2016 is accordingly rejected.11. 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 complainant, to whom it was made, were entitled to rely upon it and he may act in reliance on it. The original allottee/complainant is thereby involved in a disadvantageous contract with the Opposite Parties 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 original allottee/complainant to enter into the contract by way of signing agreement, referred to above, and also intent to deceive him, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the Opposite Parties.12. As far as objection taken by the Opposite Parties to the effect that in the face of existence of Arbitration clause in the agreement, jurisdiction of this Commission is barred it may be stated here that this issue has already been dealt with by the larger Bench of the Hon€™ble National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon€™ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon€™ble Supreme Court of India, vide order dated 10.12.2018.13. As far as objection taken to the effect that this consumer complaint is not maintainable because the complainant is seeking rewriting/modification of the contract and that only the civil court has the power to adjudicate the matter is concerned, it may be stated here that it is a simple case of adoption of unfair trade practice, negligence and deficiency in providing service on the part of the Opposite Parties, as they have failed to deliver possession of the unit in question to the complainant by the committed date or within the extended period of 12 months, in view of stay on construction activities for 8 months plus 4 months, referred to above; the project had been launched and units were sold therein, without obtaining statutory approvals; and also possession was offered vide letter dated 08.06.2016 and the grievance of the complainant was not redressed despite requests having been made by him time and again. In Lucknow Development Authority Vs. M.K.Gupta, Civil Appeal No.6237 of 1990, decided on 5.11.1993, 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. As such, objection raised by the Opposite Parties in this regard stands rejected.14. Since, it is an admitted fact that actual physical possession of unit in question, complete in all respects, has not been delivered to the complainant within the stipulated time frame as mentioned in the Agreement. Earlier, the complainant filed a consumer complaint bearing No.CC/769/2017 was dismissed as withdrawn on the request of the Counsel for the complainant with liberty to file it again after giving better particulars. According to the complainant, he got sick and was bedridden for almost one and a half year and, therefore, filed the present complaint. Even the Opposite Parties failed to refund the amount, as requested vide letter dated 22.01.2019 (Annexure C-7) and the complaint filed by the complainant on 22.10.2019, as such, there is a continuing cause of action in his favour to file this complaint. Objection raised in this regard, as such, stands rejected.15. 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 compensation 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 had deposited the money in the hope of getting a flat/plot but he 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 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. The compensation in such cases, therefore, would necessarily have to be higher.16. 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, 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 N
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ational 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. In the present case also, if we grant interest @12% p.a. on the amount to be refunded to the complainant, that will meet the ends of justice.17. The next question is as to whether what amount is to be refunded to the complainant. According to the complainant, he deposited an amount of Rs.51,60,847/-, whereas, as per the Opposite Parties, the complainant deposited an amount of Rs.45,00,847/- because cheque No.383515 dated 17.01.2012 in the sum of Rs.1,50,000/-, 383493 dated 24.05.2011 in the sum of Rs.2,10,000/- and 383494 dated 26.05.2011 in the sum of Rs.3,00,000/- i.e. totaling Rs.6,60,000/- have been dishonoured and nothing has been placed on record by the complainant to show that the complainant deposited an amount of Rs.51,60,847/- instead of Rs.45,00,847/-. Thus, it is clearly presumed that an amount of Rs.45,00,847/- was deposited by the complainant.18. For the reasons recorded above, this complaint is partly accepted, with costs and the Opposite Parties, jointly and severally are directed as under:-i. To refund the amount of Rs.45,00,847/- to the complainant, alongwith interest @12% p.a. from the respective date of transfer of the unit vide endorsement dated 28.01.2015 (Annexure R-1), from the respective dates of deposit onwards, without deducting any TDS, 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.45,00,847/- 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 harassment 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.iii. However, it is made clear in this case that if the complainant has availed loan facility from any Bank/Financial Institution, for making payment towards price of the unit in question, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.19. Certified Copies of this order be sent to the parties, free of charge.20. The file be consigned to Record Room, after completion.