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



Vipul Sehgal v/s M/s. Manohar Infrastructure & Constructions Pvt. Limited & Others

    Complaint Case No. 232 of 2019

    Decided On, 22 November 2021

    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh

    By, THE HONOURABLE MR. JUSTICE RAJ SHEKHAR ATTRI
    By, PRESIDENT
    By, THE HONOURABLE MRS. PADMA PANDEY
    By, MEMBER & THE HONOURABLE MR. RAJESH K. ARYA
    By, MEMBER

    For the Complainants: Rupali Shekhar Verma, Advocate. For the Opposite Parties: Anil Mehta, Isha Janjua, Advocates.



Judgment Text

E. Raj Shekhar Attri, President

This compliant has been filed by the complainants, seeking following relief:-

In view of the fact that the Complainants have been misappropriated with their hard earned money and the Opposite Parties have not been able to offer allotment and develop the project on time, they may kindly be directed to refund the entire paid amount of Rs.34,35,000/- with interest @ 18% from the respective dates of deposit till the date of refund, in the interest of justice.

To quash the illegal demand of Rs.18,50,000/- dated 17.01.2018 and further reminder dated 27.06.2019.

The complaint may be allowed with costs and litigation expenses of Rs. 2,00,000/

The Opposite Parties may be directed to pay compensation of Rs.2,00,000/- on account of harassment, mental agony and undue hardship caused to the Complainants on account of deficiency in service and unfair trade practices;

To pass any other order and/or relief in favour of Complainants as the Hon'ble Commission may deem fit and appropriate, in the interest of justice;

The Complainants pray for liberty to amend, modify or claim alternate relief if so required at a later stage..”

It is the case of the complainants that on 25.02.2011, they paid an amount of Rs.13.50 lacs to opposite parties no.1 and 2 towards booking of a plot measuring 250 square yards located in their project named ‘The Palms’, New Chandigarh, Mohali, Punjab. Total sale consideration of the plot in question was fixed at Rs.55 lacs. It is their case, that instead of executing buyer’s agreement, opposite parties no.1 and 2 kept on raising demands on false pretext that the development work at the project site is at final stage. It has been stated that the opposite parties allotted plot no.1116 in the said project, vide letter dated 06.10.2015, Annexure C-6, yet, agreement was still not executed by them, despite the fact that number of requests were made to them in the matter. Thereafter, more amounts were paid by the complainants, and as such, total amount of Rs.34,35,000/- (infact 34,25,000/-) which was equal to 75% of the total sale consideration, stood paid to opposite parties no.1 and 2, yet, agreement was still not executed. It has been stated that for making payment towards part price of the said plot, the complainants availed housing loan to the tune of Rs.31,50,000/- from opposite party no.3, vide loan agreement dated 29.09.2015, Annexure C-5. It has been further stated that in the absence of execution of agreement, when the opposite parties demanded more amount of Rs.18,50,000/-, vide letter dated 17.01.2018, the complainants did not agree to pay the same, in the absence of execution of the agreement and dearth of development activities at the project site. It has been pleaded that neither agreement has been executed between the parties nor possession has been delivered to the complainants by opposite parties no.1 and 2, which act amounts to deficiency in providing service and adoption of unfair trade practice on their part. Hence, this complaint.

The claim of the complainants has been contested by the opposite parties no.1 and 2, on numerous grounds, inter alia, that the complainants have concealed material facts from this Commission; that they being speculators, did not fall within the definition of “consumer”; that though a plot was booked by the complainants vide expression of interest dated 25.02.2011, yet, they got cancelled the same, on account of financial constraints; that they did not return the original documents despite requests made by opposite parties no.1 and 2; that thereafter, the complainants again approached opposite parties no.1 and 2 and moved application dated 22.09.2015, Annexure O-4, which was accepted vide letter dated 18.09.2015, Annexure C-2 and they were allotted plot no.1116 on 06.10.2015, Annexure O-5; that thereafter when the complainants again did not come for execution of the agreement, various reminders/notices were sent to them in the matter, but neither they came for agreement nor for making payment of the remaining amount; that this complaint is bad for nonjoinder of HDFC Limited as necessary party from which the complainants have availed housing loan as such it should be dismissed on this ground alone; that complicated questions of fact and law are involved in this case as such, it needs to be relegated to the civil court; and that the complainants have paid an amount of Rs.34,25,000/- and not Rs.34,35,000/- as claimed by them in their complaint; 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; that no prejudice has been caused to the complainants, even if opposite parties no.1 and 2 did not possess approvals/sanctions for launching the project in question at the initial stage; that delay if any in issuance of the said notification on 25.01.2017 was procedural; that once the State Government has not held that opposite parties no.1 and 2 had violated the provisions of PAPR Act, as such, this Commission cannot go into the said question, because Section 35 bars jurisdiction of the civil court; that on request made by opposite parties no.1 and 2, the competent authority extended completion period of the project upto 31.07.2019, which was further extended upto 13.06.2020; that opposite parties no.1 and 2 have requested the competent authorities for extension of time for development at the project site, which is under consideration; that opposite parties no.1 and 2 have obtained all permissions/approvals in respect of the project in question. It has been stated that claim of the complainants 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 complainants.

On merits, purchase of plot bearing no.1116 aforesaid in the said project by the complainants and also non delivery of possession thereof has not been disputed by opposite parties no.1 and 2. However, ironically, it has been claimed in the reply that opposite parties no.1 and 2 are trying to complete the project 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. is near advance stage. While applying the theory of force majeure circumstances (which means irresistible circumstances beyond one’s control such like act of God), it has been stated that the competent authorities also delayed in granting approvals; that the project was delayed on account of business and political rivalries and that was why, the competent authorities delayed in granting approvals/sanctions; that opposite parties no.1 and 2 are ready to compensate the complainants for the period of delay in delivery of possession of the plot in question; and that the complainants can come forward for execution of the agreement after making payment of remaining amount towards price of the said plot. Remaining averments of the complaint have been denied. Prayer has been made to dismiss the complaint with costs.

Opposite party no.3 in its written reply stated that in case of cancellation of the plot and termination of the agreement, if any, it shall have first charge/right to seek apportionment of the dues towards the plot in question. It has been pleaded that for any dispute between the complainants and opposite parties no.1 and 2, opposite party no.3 is not responsible and complaint against it be dismissed.

In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in written reply filed by opposite parties no.1 and 2.

The parties led evidence in support of their case. Written arguments have also been filed by the parties.

We have heard the contesting parties and have gone through record of the case, including the rejoinder and written arguments, very carefully.

First, we will deal with the objection taken by the opposite parties no.1 and 2, to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties no.1 and 2 to establish that the complainants have 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 they failed to discharge their onus. On the other hand, the complainants, in their complaint have clearly stated that the plot in question was purchased by them for their residential purposes, as they were suffering space constraints while staying together. Hence we hold that the complainants are consumers as defined under the Act. In this view of the matter, objection taken by opposite parties no.1 and 2 stands rejected.

Now coming to the merit of this case. It may be stated here that perusal of application for expression of interest dated 25.02.2011, Annexure C/1, reveals that a plot measuring 250 square yards was booked by the complainants on 25.02.2011 on making payment of Rs.13,50,000/- which was equal to 25% of the total sale consideration of Rs.55 lacs. Thereafter, it is evident that provisional allocation letter, Annexure C-2, in respect of the said plot was issued by opposite parties no.1 and 2 after a huge delay of more than four years i.e. only on 18.09.2015. It is further evident from the record that thereafter the complainants raised housing loan from opposite party no.3 and made payments to opposite parties no.1 and 2 towards price of the said plot and in total paid an amount of Rs.34,25,000/-.

Counsel for the complainants raised following contentions in support of his case:-

that on 25.02.2011 the complainants had paid the amount of Rs.13,50,000/- which was equal to 25% of the total sale consideration of Rs.55 lacs, yet, opposite parties no.1 and 2 failed to execute buyer’s agreement in respect of the plot in question;

that plot was allotted after an inordinate of more than 4 years from the date of booking thereof;

that despite the fact that total amount of Rs.34,25,000/- stood paid by the complainants, yet, opposite parties no.1 and 2 forced them to make the entire sale consideration before executing the agreement; and

that possession of the plot has not been delivered to the complainants within a reasonable period from the date of booking and still they are empty handed.

On the other hand, Counsel for opposite parties no.1 and 2 raised following contentions in support of his case:-

that in the first instance, though application for allotment was moved by the complainants, yet, since the said application was signed by complainant no.1 only, as such, complainants no.2 and 3 were requested to come with the requisite documents and for signatures on the said application form but they failed to do so;

that thereafter, demands were raised followed by various reminders/notices for making payment towards remaining part price of the said plot but the complainants failed to do so, as a result whereof the said application stood cancelled by opposite parties no.1 and 2.

that thereafter the complainants again approached opposite parties no.1 and 2 and requested for allotment of plot, as a result whereof application dated 22.09.2015 was got filled from them and plot no. was allotted to them;

that even thereafter, the complainants failed to make regular payments and had paid only 75% of the total sale consideration and when they were asked to come for execution of agreement and also for making remaining payment they failed to do so.

It may be stated here that Counsel for opposite parties no.1 and 2 while placing reliance on application form dated 25.02.2011, Annexure O-3 contended with vehemence that the booking was cancelled and it was only on 22.09.2015 that fresh application was filled by the complainants and thereafter plot no.1116 was allotted in their favour on 18.09.2019, as such fault if any lies on the part of the complainants and not the Company. We do not agree with the contentions raised for the reasons to be recorded hereinafter.

Before moving further, it is pertinent to mention here that opposite parties no.1 and 2 have failed to place on record any document whereby the complainants were informed that their application dated 25.02.2011 stood cancelled. There is nothing on record to prove that complainants no.2 and 3 were ever contacted or were sent any communication/letter asking them to sign the said application. Even this much has also not been proved as to on which date the said application was cancelled. It has also not been clarified by the opposite parties no.1 and 2 that if the application dated 25.02.2011 was not signed by complainants no.2 and 3, then why they received an amount of Rs.9 lacs (Rs.4.5 lacs each) vide cheques dated 08.03.2011 respectively from them.

On the other hand, there is ample evidence on record, after perusal whereof, it can easily be said that opposite parties no.1 and 2 are taking bald plea in this regard, just with a view to wriggle out of the situation. Our this view is supported by the provisional allotment letter dated 18.09.2015, Annexure C-2, wherein it has been in a very candid manner written by opposite parties no.1 and 2 that the company has provisionally allotted a plot measuring 250 square yards, in the name of the complainants, in response to their application dated 25.02.2011. In this letter, opposite parties no.1 and 2 have also acknowledged the receipt of Rs.13,50,000/- which had been paid by the complainants, in the year 2011. There is another letter dated 18.09.2015, Annexure C-3 having been written by opposite parties no.1 and 2 to opposite party no.3 giving permission to mortgage the said plot and in this letter also, it has been in a very candid manner stated that the plot in question had been allocated to the complainants in lieu of provisional allocation dated 25.02.2011. In these circumstances, it is held that the application dated 25.02.2011 was never cancelled by opposite parties no.1 and 2 and now this bald plea has been taken just with a view to defeat the claim of the complainants and to cover their deficient services and unfair trade practice by not providing anything to the complainants for a period of about more than 4 years from the date of making payment of booking amount. Thus, the case of opposite parties no.1 and 2 with regard to cancellation of application dated 25.02.2011 is based on falsehood and misrepresentation of facts, which act needs to be deprecated. It is well settled law that the party who comes in the court with unclean hands can be thrown out at any stage. In this view of the matter, we are of the considered view that this falsehood and misrepresentation of facts has also caused great humiliation to the complainants and for this opposite parties no.1 and 2 are liable to compensate them, by making payment of Rs.50,000/-.

It is coming out from the record that despite the fact that total amount of Rs.34,25,000/- stood received by opposite parties no.1 and 2 till 2015, yet, agreement was not sent to the complainants. In our considered opinion, when opposite parties no.1 and 2, in the first instance, had already received substantial amount which was equal to about 65% of the total sale consideration from the complainants, it was required of them to 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 complainants, on receipt of remaining amount. However, instead of doing that, it is evident from the record that opposite parties no.1 and 2 were interested only in receiving amounts from the complainants. Thus, this act of raising demands and receiving substantial amount, as referred to above, in the absence of 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 opposite parties no.1 and 2 to execute the agreement for sale as per law, after obtaining the maximum sale consideration of 25%. It is apposite here to reproduce the said provision: -

“6. 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.

(2) xxxxxxxxxxxxxxxx……………...

(3) xxxxxxxxxxxxxxxxx……………….”

The opposite parties no.1 and 2 were 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. Opposite parties no.1 and 2 also cannot take shelter under the exemption certificate from the provisions of PAPR Act, which was issued in their 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 parties no.1 and 2 were deficient in providing service and adopted unfair trade practice on this count.

However, it is also surprising that 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 parties no.1 and 2 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 complainants 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 opposite parties no.1 and 2, in this complaint filed by the complainants under Consumer Protection Act, for deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite parties no.1 and 2.

Opposite parties no.1 and 2 also cannot wriggle out of the situation, by placing reliance on letters dated 18.01.2017, Annexure O-6 and 30.11.2017, Annexure O-8, to say that the complainants defaulted in making remaining payment and also did not come for execution of agreement. It may be stated here that admittedly, opposite parties no.1 and 2 had received total amount of Rs.34,25,000/- from the complainants against total sale consideration of Rs.55 lacs, which is about 65%. It is coming out from the record that it was for the first time, in 2017, i.e. after a huge period of more than 6 years, from the date of booking of the plot in question on 25.02.2011, that opposite parties no.1 and 2 requested the complainants to come for execution of the agreement, yet, with a condition to make another payment of Rs.18,50,000/-, to which, admittedly, the complainants did not agree.

As to why the payment of Rs.18,50,000/-, was not made by the complainants, Counsel for the complainants has contended with vehemence that there was no development at the project site and also opposite parties no.1 and 2 were bound to execute agreement before that, so that the complainants are able to know about the terms and conditions thereof. Thus, at this stage, the question arises (irrespective of the fact that agreement was executed or not for more than 6 years of booking) whether opposite parties no.1 and 2 were justified in raising demand of such a huge amount of Rs.18,50,000/- over and above the amount of Rs.34,25,000/- already received from the complainants, which would have arrived at Rs.52,75,000/- (more than 95% of the total sale consideration), had the complainants paid the same. It may be stated here that from the reply filed by opposite parties no.1 and 2, itself, it can easily make out that development at the project site was not ready even by January 2020 (the date when reply to this complaint has been filed). Our this view finds supported from the candid admission made by opposite parties no.1 and 2 in their written reply as under:-

Para no.21= The project is in full swing and development work for some area is completed and for others is at advance stage.

Para No.21= The OP Company has also sought extension for completion of the Project by moving an appropriate application before the competent authority which is under consideration and likely to be granted.

Para no.29= The OP is trying to complete the project as early as possible.

Para no.30= Due to force majeure, there is some delay in offering possession of plot in question, for which the complainants will be compensated.

Thus, the contents of reply filed by opposite parties no.1 and 2, in the month of January 2020, are sufficient to prove the case of the complainants that though the company was not ready with the development work and basic amenities and still extension to complete the same has been sought for, from the competent authorities, which is under consideration, even then they (complainants) were compelled to make the remaining amount towards price of the said plot. In this view of the matter, it is held that opposite parties no.1 and 2 being in dominating position, wanted to usurp the remaining amount from the complainants, without providing them anything. In this view of the matter, if the complainants, in the present case, did not make remaining payment or withheld the same, when they came to know that the project has been launched without obtaining necessary approvals/sanctions from the competent authorities; and that there was no development at the project site, they were right in doing so. Our this view is supported by the principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date or within a reasonable period where no agreement is executed, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. As such, plea taken by opposite parties no.1 and 2, in this regard stands rejected.

At the same time, it is also held that plea taken by opposite parties no.1 and 2 to the effect that delay took place in completing the development works at the project site, because of delay in approvals by the competent authorities does not carry out any weight for the reasons to be recorded hereinafter.

It may be stated here that not even a single letter has been placed on record by opposite parties no.1 and 2 showing that they ever reported the competent authorities concerned that there is a delay on their part in granting such sanctions/approvals in respect of the project in question or that any such letter, by which they 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. At the same time, opposite parties no.1 and 2 have not been able to convince this Commission, that if they knew that the said approvals were still awaited and they will not be able to deliver possession within a reasonable period of two to three years from the date of booking, then why they sold the plot in question to the complainants. The opposite parties no.1 and 2 should have obtained all the approvals/sanctions before booking the said plot. If opposite parties no.1 and 2 chose to accept booking without obtaining statutory approvals, they are to blame to themselves only. The purchaser of the units/plots, who had nothing to do with grant of statutory approvals, 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:-

“…..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…..”

The aforesaid admission of opposite parties no.1 and 2 only, in itself is sufficient to prove that money had been collected from the prospective buyers including the complainants starting from February 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:-

“…………….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…………”

It is therefore held that opposite parties no.1 and 2 were deficient in providing service and were negligent on this count and in no way can claim immunity out of the said plea. Thus, in the present case, opposite parties no.1 and 2 failed to convince this Commission, that they 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. In this view of the matter, no help therefore can be drawn by opposite parties no.1 and 2, in this regard.

Be that as it may, admittedly, in the present case, agreement has not been executed by opposite parties no.1 and 2, which act has been held to be an unfair trade practice on their part. It is settled law that where there is no period mentioned in the agreement for delivery of possession or in the absence of any agreement, reasonable period has to be taken as three years for completion of the development work and possession. It has so been held by the Hon’ble Supreme Court of India in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442, relevant part whereof is reproduced hereunder:-

‘……Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract…’

Thus, in the absence of a specific date of delivery of possession in any of the documents, placed on record, we are of the considered opinion that we cannot make the complainants to wait for an indefinite period in the matter. If we take a reasonable period of three years from the date of booking of the plot i.e. from 25.02.2011, as period of completion of development works at the project site and delivery of possession of the plot in question to the complainants, it comes to 24.02.2014. Plot in question was booked on 25.02.2011 and now it is November 2021 and still opposite parties no.1 and 2 are seeking more time, on the ground that they have moved application before the competent authority seeking extension of time for completion of the project in question. Opposite parties no.1 and 2 also cannot seek benefit out of their deficiency in service by saying that since the application moved for extension of time seeking for completion of project before the competent authority is under process, this complaint is premature. Furthermore, as stated above, opposite parties no.1 and 2 have also failed to convince this Commission, that they 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.

Under above circumstances, we are of the considered opinion that we cannot make the complainants to wait for an indefinite period, in the matter, on the whims and fancies of opposite parties no.1 and 2. 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 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 opposite parties no.1 and 2 are not sure as to by which date development work will be completed and possession of the plot will be delivered to the complainants, 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.

Opposite parties no.1 and 2 have placed reliance on DLF Homes Panchkula (P) Ltd. vs Sushila Devi’s case (supra), 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. vs Sushila Devi’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 complainants have prayed that they be granted interest, as sought for by them in their complaint, as the deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite parties no.1 and 2 is writ large. Under these circumstances, plea taken by the opposite parties no.1 and 2 in this regard, stands rejected.

Now, we will deal with the question, as to what rate of interest should be awarded to the complainants, 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/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; 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 and recently in Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021, 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 complainants, that will meet the ends of justice.

Now coming to the objection taken by Counsel for opposite parties no.1 and 2 to the effect that in the face of registration of the project under the RERA and also 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. First coming to objection that this Commission is not competent to entertain this complaint as the project has been registered under RERA, 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 Commission or Forum under the provisions of the CP Act to entertain any consumer 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 he

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re that in the present case, opposite parties no.1 and 2 were legally bound to execute agreement and deliver possession of the plot in question within a reasonable period from the date of booking (which they failed to do so) and, as such, the nature of such transaction is covered by the expression ‘service’. Our this view is supported by the principle of law laid down in Narne Construction P. Ltd., etc. etc. Vs. Union of India and Ors. Etc., II (2012) CPJ 4 (SC) Furthermore, because it is an undisputed fact that opposite parties no.1 and 2 neither executed buyers’ agreement; nor delivered possession of the plot purchased by the complainants and no cogent and convincing reason has been given for the same, as such, it can very well be said that there is a denial of service to the complainants on the part of opposite parties no.1 and 2, for a very long time, for which the complainants were at liberty to avail remedy by way of filing this consumer complaint. 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, as such, objection taken in this regard by opposite parties no.1 and 2 stands rejected As far as plea taken by opposite parties no.1 and 2 to the effect that the complainants may now come for execution of agreements and possession of the plot in question, it may be stated here that this plea would have been considered, in case, the complainants had sought possession of their plot. Since, the complainants are entitled to refund of amount paid alongwith interest, in view of the reasons stated above, such a plea taken by opposite parties no.1 and 2 could not be accepted and is accordingly rejected. At the same time, it is also held that since on the application having been moved by the complainants for impleading HDFC Limited as necessary party was allowed by this Commission vide order dated 28.01.2021 and it was impleaded in the array of complaint as opposite party no.3, as such, objection taken by opposite parties no.1 and 2 that this complaint is bad for non-joinder of parties, is rejected having been rendered infructuous. For the reasons recorded above, this complaint is partly accepted with costs and opposite parties no.1 and 2, jointly and severally, are directed as under:- Refund the amount of Rs.34,25,000/- to the complainants, alongwith compensation by way of 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 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. 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.1,25,000/- to the complainants within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of passing of this order, till realization. Pay compensation to the tune of Rs.50,000/- as held in para no.13 above, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of passing of this order, till realization. However, it is made clear that opposite party no.3 shall have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants, towards repayment of housing loan availed in respect of the plot in question. Accordingly, with these directions, complaint against opposite party no.3 is dismissed with no order as to cost. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to Record Room, after completion.
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