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Judgment
Avm J. Rajendra, Avsm Vsm (Retd.), Presiding Member
This Order shall decide both the Appeals being F.A. No.1833 of 2019 filed by Manohar Infrastructure & Constructions Pvt. Ltd. & Ors. (hereinafter referred to as ‘the OPs’) and F.A. No.596 of 2022 filed by Smt. Suresh Sharma (hereinafter referred to as ‘the Complainant’) arising out from the impugned Order dated 12.07.2019 passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred to as the “State Commission”) in Consumer Complaint No. 458 of 2018, wherein the State Commission partly allowed the complaint.
As per Report of the Registry, F.A. No.596 of 2022 has been filed with delay of 1096 days. However, as per Application filed by the Complainant, the delay is 134 days. For the reasons stated in the I.A. No.7525 of 2022, the delay is condoned.
Brief facts of the case, as per the Complainant, are that the Complainant sought refund of amount of Rs.28,44,000 (along with interest, compensation etc.), paid by her, to the OPs, towards the residential plot, measuring 200 Sq Yds purchased vide application dated 26.12.2013, in 'Palm Spring', Mullanpur, Punjab. Total consideration was fixed at Rs.37,60,000 (200 per Sq Yds x Rs. 18,800). It is the case of the complainant that despite payment of about 75% of the total sale consideration by November 2015, the OPs failed to allot the plot; forward buyer's agreement; and till date the possession is not offered and delivered to her. Number of visits to the site and requests to OPs to complete the work and hand over the plot did not yield any result. Thus, she served legal notice dated 24.11.2018 either to deliver possession of the plot after completing development work, or refund the entire amount paid, with interest and compensation. In the absence of any reply, she filed a Complaint before the State Commission for refund of Rs.28,44,000 with interest @ 18% p.a. from 26.12.2013 till date of payment and Rs.5 Lakhs as compensation for mental agony.
In their reply, the OPs took numerous objections that she was interested in the property for speculative purpose and, she being investor, would not fall within the definition of consumer, as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 (the Act). Neither the complaint is duly verified nor was any affidavit in the form of evidence filed by her in support of the complaint. There is concealment of facts by the Complainant. It was pleaded that as complicated questions of facts and law are involved in this complaint, the case cannot be adjudicated by a Consumer Commission and only Civil Court has jurisdiction to entertain such matters. The project of the OPs is registered under the Real Estate (Regulation and Development) Act, 2016 (the RERA), which is a special statute and thus Consumer Fora has no jurisdiction. On merits, it was admitted that the plot, in question in a project of the OPs known as "Palm Spring", was sold to her and she made part payment, as mentioned in the complaint. She failed to make further payment, when demand was raised, towards price of the said plot, as a result reminders were sent to her. To assert the development work in the project, some photographs were placed on record. It was stated that the project was approved on 22.03.2013. Formal agreement was signed with the Government on 14.06.2013. Thereafter, some more land, for which completion period was given till 13.06.2018, vide supplementary agreement dated 16.06.2016. As such, possession of the plot, in question, was to be delivered by 13.06.2018. Further, on OPs request, the Competent Authority has extended completion period of the project till 31.07.2019. It was stated that exemption from the applicability of provisions of the PAPRA already stood granted by the Govt in favour of the OPs on 25.01.2017. Thus, the OPs in accepting deposits from purchasers stood rectified. All irregularities stood compounded. The exemption granted will relate back to the date, when application was moved for sanction to launch the project, in the year 2011 i.e. it is retrospective in nature. Once the State Government has not held that the OPs had violated the PAPRA, Consumer Fora cannot go into this question. As per section 35 of the PAPRA, jurisdiction of Civil Court is barred to entertain and decide any question relating to matters arising under it (PAPRA). The OPs are in possession of all requisite permissions/clearances, in respect of the said project. In accepting the expression of interest to purchase land, in the absence of necessary permissions/ sanctions; non-execution of Buyer's Agreement in a time bound manner, as per Section 6 of the PAPRA etc. has no adverse effect on the project of the OPs. The Complainant was requested number of times, to pay the balance, select the plot and sign buyer's agreement and take possession. But, she failed to do so. Notices were also sent to her, but no avail. She deliberately did not come forward as she was aware that, if she signed the Agreement, refund of deposit amount would entail forfeiture clause. She is defaulter. Her claim for interest @18% p.a. is totally unjustified. Recently, in a case decided against DLF Valley Panchkula, the Hon’ble Supreme Court granted interest @9% p.a. while ordering refund of the deposited amount. Huge amount was invested by the OPs and work is near completion. However, as per Supplementary Agreement dated 16.06.2016, the Govt. has given time for completion of the project till 13.06.2018. The delay in delivery of possession was also due to shortage of building material and ban on mining by the Govt., which could be termed as force majeure conditions. The Complainant is free to come forward for execution of the Agreement. There is no deficiency in rendering service nor adoption of unfair trade practice, on the part of the OPs.
The State Commission vide order dated 12.07.2019 passed the following order:
(i) To refund the amount Rs.28,44,000/-, to the complainant, alongwith interest @13% p.a., from the respective dates of deposits onwards.
(ii) To pay compensation, in the sum of Rs. 1,00,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
(iii) To pay cost of litigation, to the tune of Rs.35,000/- to the complainant.
Dissatisfied with the Impugned Order, both the parties i.e. the Complainant and the OPs have filed the present cross appeals before this Commission with the following prayers:
FA/1833/2019- filed by the OPs/Manohar Infrastructures & Constructions Pvt. Ltd. & 2 Ors.:
(i) Allow the present Appeal and set aside the order dated 12.07.2019 passed by the Learned State Consumer Dispute Redressal Forum, Chandigarh, U.T in Consumer Complaint No. 458 of 2018;
(ii) Pass such and other further orders as this Hon’ble Commission may deems fit and proper in the facts and circumstances of the present case.”
FA/596/2022- filed by the Complainant Smt. Suresh Sharma:
“It is further, respectfully prayed that the present appeal may kindly be allowed as prayed for and the impugned judgment dated 12.07.2019 passed by Ld. State Disputes Redressal Commission, U.T. Chandigarh may kindly be set aside only to the extent of partly allowing the complaint of appellant. The appeal of appellant may kindly be allowed in toto and respondents-developer may kindly be directed to handover the possession of the plot in question, which was booked by the appellant and issue allotment letter after development of all the basic amenities on the site in question against the application dated 26.12.2013 made by the appellant, in the present case, in the interest of justice.
Any other order or direction which this Hon'ble Commission may deem fit in the facts and circumstances of the case, may kindly be issue.
In his arguments, the learned Counsel for OPs sought to limit the present case and scope only to the quantum of interest awarded @ 13% per annum on the refund amount; and award of compensation of Rs.1 Lakh for causing mental agony and physical harassment to the Complainant by the State Commission. The learned Counsel for the Respondent also fairly stated that, he is aware of the established judicial precedents in the matter and that he will seek similar award in the present circumstances of the case.
On the other hand, the Counsel for the Complainant sought possession of plot in question, booked by the Complainant subsequent to implementing basic amenities, as specifically detailed in the Complaint. Additionally, emphasizing the ongoing sale of plots by the OPs from 01.07.2019 until the present, the Counsel urged a sympathetic consideration of the Complainant's plea for plot allocation, requesting the issuance of appropriate orders in this regard.
I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.
As regards the contention of the Complainant in her Appeal seeking possession of the plot in question, contrasts with the relief granted by the learned. State Commission, which provided a refund of the amount deposited by her. A bare perusal of the Complainant’s prayer before the learned State Commission reveals a specific mention of seeking an alternative relief, which was a refund of the amount deposited with the OPs against the plot/flat in question. The State Commission, while allowing the Complaint, explicitly noted that possession of the plot couldn't be provided for the next four years. It was only after this observation that the Counsel for the Complainant pursued the refund of the amount. Consequently, the State Commission's order regarding the refund of the deposited amount by the Complainant does not entail any legal infirmity. Therefore, the Complainant's contention about seeking possession of the plot in question is considered untenable.
As regards the rate of interest and the scope for payment of compensation in such matters, the Hon’ble Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019 decided on 07.04.2022 held that:-
“We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the Order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.
At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just.”
The Hon’ble Supreme Court in the case of DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, in CA Nos. 4910-4941 of 2019 decided on 10.05.2019 held that multiple compensations for singular deficiency is not justifiable. Therefore, award of Rs.1,00,000/- as compensation for mental agony and physical harassment by the learned State Commission is untenable.
In view of the above discussions and judicial precedents, the impugned Order dated 12.07.2019 in C.C. No.458 of 2018 passed by the learned State Commission, U.T. Chandigarh is modified with the following directions -
ORDER
I. The OPs shall refund the entire deposited amount of Rs.28,44,000 to the Complainant along with simple interest @ 9% per annum from the respective dates of deposit till the date of realization, within one month from the date of this order. In the event of delay, the amount payable shall carry interest @ 12% per annum from the date of expiry of one month until the realization of the entire amount.
II. The Appellant shall pay cost of litigation quantified as Rs.35,000 to the Complainants/ Respondents, within one month from the date of this order.
III. The Compensation of Rs.1,00,000/- granted to the Complainant for causing mental agony and physical harassment is set aside.
Consequently, both the Appeals No. FA/1833/2019 & FA/596/2022 stands disposed of accordingly.
All the pending Applications, if any, also stand disposed of. The statutory amount deposited by any of the Parties, if any, be refunded as per law after due compliance of this order.