Dev Raj, Member:

1. This complaint has been filed by the complainant, seeking refund of amount of Rs. 20,26,400 paid by her, on different dates, during the years 2012 to 2014, to the opposite parties, towards flat bearing No. EV/EH4/3BHK-A/101, in the project, launched by the opposite parties, under the name and style Emerging Height 4 situated in Emerging Valley, Landran-Banur Road, Mohali. It was specifically stated that despite the fact that the opposite parties had received substantial amount aforesaid, against total sale consideration of Rs. 35,55,000, they failed to offer and deliver possession of the said unit. It was further stated that, not only as above, deficiency in rendering service and adoption of unfair trade practice, is writ large, as the opposite parties failed to issue allotment letter, in respect of the unit, in question, for a long time. Ultimately, provisional allotment letter Annexure C-6 was issued in respect of the said unit, on 25.7.2013. However, Flat Buyers Agreement was never executed by the opposite parties, despite making number of requests in the matter. It was further stated that, in order to cover up their lapse, the opposite parties, instead of executing the Agreement, again issued allotment letter Annexure C-9, for the second time, on 24.5.2014. It was further stated that despite the fact that the complainant had paid more than 50% of the sale consideration, Agreement in respect of the said unit was not got signed from the complainant, whereas, on the other hand, the opposite parties kept on insisting the complainant, to pay the remaining sale consideration. It was further stated that number of visits were paid by the complainant to the office of the opposite parties, requesting them to do the needful, but to no avail. When neither Agreement was executed; nor delayed compensation @ 12% p.a., on the deposited amount, for the period of delay in offering and delivering possession of the unit, was paid; nor the requests made by the complainant to complete construction and deliver possession were acceded, legal notice dated 6.11.2015 Annexure C-14 was served upon the opposite parties, but to no avail. It was further stated that there was a complete violation of provisions of The Punjab Apartment and Property Regulations Act, 1995 (PAPRA), on the part of the opposite parties, as far as the present project/unit, is concerned.

2. It was further stated that the aforesaid act and conduct of the opposite parties, amounted to deficiency in providing service and adoption of unfair trade practice. Hence this complaint has been filed by the complainant, seeking directions to the opposite parties to refund the amount paid, along with interest, compensation and litigation expenses.

Upon notice, reply was filed by the opposite parties, wherein, they took certain preliminary objections, to the effect, that the complaint was liable to be dismissed, because as per terms and conditions of the Allotment Letters, any dispute, with regard to the unit, in question, was to be referred to an Arbitrator; that this Commission has no territorial jurisdiction, as no cause of action accrued to the complainant at Chandigarh and that mere making of payments by her, with Chandigarh Office of the opposite parties, does not confer any territorial jurisdiction to file this complaint before this Commission at Chandigarh; and that the complainant being investor, did not fall within the definition of a consumer, as provided under the.

On merits, purchase of the unit, in question, and also payments made by the complainant, as mentioned in the complaint, was not disputed. It was stated that Buyers Agreement was sent to the complainant for signatures, but she refused to sign the same. It was further stated that the unit, in question, is ready for possession, but it was the complainant who is defaulter in making payment towards remaining sale consideration thereof. It was further stated that the complainant has approached this Commission, with unclean hands and has not disclosed the material facts. 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.

In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite parties.

The contesting parties led evidence in support of their case.

3. We have heard the contesting parties, and have gone through the evidence, and record of the case, carefully.

First, we will deal with the objection, raised by the opposite parties, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, in the allotment letter, this Commission has no jurisdiction to entertain the consumer complaint.

We are not going to agree with the objection raised. In the first instance, it may be stated here that we have gone through the contents of the allotment letters dated 25.7.2013 Annexure C-6 and 24.5.2014 Annexure C-9 but did not find any clause to the effect that, in case of any dispute arising out between the parties, the matter was to be referred to an Arbitrator. Though, it has been settled preposition of law, laid down by the Honble Supreme Court of India in Fair Air Engg. Pvt. Ltd. & Another v. N.K. Modi, III (1996) CPJ 1 (SC)=1996 (SLT SOFT) 1386=(1996) 6 SCC 385 ; C.C.I. Chambers Coop. Housing Society Ltd. v. Development Credit Bank Ltd., III (2003) CPJ 9 (SC) =V (2003) SLT 185=(2003) 7 SCC 233 ; Rosedale Developers Private Limited v.Aghore Bhattacharya and Others, Civil Appeal No. 20923 of 2013; Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha, I (2004) CPJ 1 (SC) =I (2004) SLT 200=I (2004) CLT 20 (SC)=(2004) 1 SCC 305 and United India Insurance Co. Ltd. v. M/s. Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and Another v. Hira Lal, IV (2011) CPJ 4 (SC)=VII (2011) SLT 474, that even in the face of existence of arbitration clause in an Agreement, application form etc., to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, the Consumer Fora has jurisdiction to entertain the consumer complaint, yet, we are not discussing it in detail, because, in the present case, in the absence of such clause in the allotment letters or any other document placed on record, it is held that the said objection raised by the opposite parties deserves rejection having been rendered infructuous.

4. The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case, it is evident that the entire documents in respect of the unit, in question, annexed with the complaint, were released from Corporate Office of the opposite parties i.e. from SCO No. 46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh-160009. Notices dated 1.6.2015 and 18.6.2015 Annexures C-11 and C-12 respectively, followed by legal notice dated 6.11.2015 Annexure C-14 were also served upon the opposite parties, at their Chandigarh Corporate Office. Furthermore, the opposite parties have candidly admitted in their reply that they have received payments, in respect of the unit, in question, from the complainant, at Chandigarh. If that is so, it can safely be said that the Corporate Office of the Company at Chandigarh, was actively playing a significant role, in respect of the transaction in question, meaning thereby that it was actually carrying on business for gains, from Chandigarh. Merely bald assertion to the effect that only the Mohali Courts have jurisdiction to entertain and decide the present complaint, is of no help to the opposite parties. This asseration of the opposite parties is also bereft of merit, in view of Clause M of the allotment letter dated 24.5.2014, Annexure C-9, which says that All legal disputes shall be subject to the Courts of competent jurisdiction at Chandigarh only. Under these circumstances, it can very well be said that this Commission, at Chandigarh, has territorial jurisdiction, to entertain and decide this complaint, in view of Sections 17(2)(a)(b) and (c) of the. The objection taken by the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

5. The next question, that falls for consideration, is, as to whether, the complainant is a speculator, and that she has purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, she would not fall within the definition of consumer, as defined by Section 2(1)(d)(ii) of the Act, as alleged by the opposite parties. It may be stated here that there is nothing, on record to show that the complainant is the property dealer and is indulged in sale and purchase of property, on regular basis. In para No. 2 of the complaint, supported by her affidavit, it has been specifically stated by the complainant that the unit, in question was purchased by her, for her residential purpose. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja v. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., I (2016) CPJ 31 (NC), by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited v. Nirmala Devi Gupta, II (2016) CPJ 316 (NC) . The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a consumer, as defined under Section 2(1)(d) of the. Such an objection, taken by the opposite parties in their written reply, therefore, being devoid of merit, is rejected.

6. The next question that falls for consideration, is, as to whether, even as on today, the opposite parties are in a position to deliver possession of the unit, in question, complete in all respects or not. It is pertinent to mention here that not even a single document has been placed on record to show that construction of the tower, in which the unit, in question, was allotted to the complainant, is complete and ready for offer of possession. Already a period of more than five years has lapsed from the date of booking of the unit, but possession has not been offered to the complainant, despite the fact that substantial amount i.e. more than 50% of the total sale consideration stood paid by her. The stand taken by the opposite parties, in their written version, that the construction work of the unit is complete and it is ready with possession, does not appear to be correct. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed, and that the construction of units is complete, is on the builder/opposite parties. It was so said by the National Commission, in Emaar MGF Land Limited and Another v. Krishan Chander Chandna, IV (2014) CPJ 589 (NC) =First Appeal No. 873 of 2013, decided on 29.9.2014. Thus, in case, all the development activities, had been undertaken, and construction of the flats is complete at the site, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. At the same time, it was also required to produce on record, a copy of the occupation and partial/final Completion Certificates (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to produce that also. As such, an adverse inference can very well be drawn against the opposite parties, that they have not obtained the occupation and partial/final completion certificates, in respect of the unit and project, in question, for want of construction and basic amenities. Under above circumstances, it is held that even till date, the construction of Tower, in which the flat, in question, is located, is not complete.

7. Not only as above, unfair trade practice, on the part of the opposite parties, is writ large. It is coming out of record that despite the fact that out of total sale consideration of Rs. 35,55,000, the complainant had paid Rs. 20,26,400 i.e. more than 55%, Buyers Agreement was not got signed by the opposite parties, from the complainant. Even till the date of filing of the complaint or even till the date, arguments were heard, Agreement in respect of the unit in question was not in picture. This act of the opposite parties amounts to violation of the provisions of Section 6 of the PAPRA, which reads thus:

6.(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 for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act No. 16 of 1908).

Furthermore, Buyers Agreement on accepting application for purchase of unit, and after receiving substantial amount, should have been executed within a reasonable time say about two to three months. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas v. DLF Homes Panchkula Private Limited, Complaint Case No. 93 of 2016, decided on 2.6.2016 . Relevant portion of the said case, reads thus:

The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.2.2011. She was allotted unit, vide letter dated 23.2.2011, on which date, she had paid an amount of Rs. 4 lacs. Buyers Agreement was not put for signing in a reasonable time, say two to three months. She continued to make payment and when Buyers Agreement was got signed, on 18.8.2011, she had already paid an amount of Rs. 21,68,524. By not offering Buyers Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected.

8. Under above circumstances, it is held that by not executing Buyers Agreement after accepting 25% of the sale consideration or after accepting 50% of the sale consideration, or even till date , the opposite parties were guilty of deficient service to the complainant and also indulged into gross unfair trade practice.

9. Furthermore, there is nothing to show that any permission was available with the opposite parties, when project was sold in the year 2012. To launch the project, without getting necessary permissions/approvals, would amount to unfair trade practice. Similar view was expressed by the National Commission in a case titled as Emerging India Real Assets Pvt. Ltd. and Another v.Kamer Chand and Another, (NC) Revision Petition No. 765 of 2016, decided on 30.3.2016. In that case, it was held as under:

We are unable to persuade ourselves to agree with the learned Counsel. While affirming the order passed by the District Forum and commenting and deprecating the conduct of the Opposite Parties in the complaint, in launching the project and selling the farmhouses, even without obtaining sanction/approval from the competent authority, the State Commission has observed as follows:

If a marketing agency sells out a project, for which, no approvals/sanctions have been granted by the Govt. Authorities, the said agency has to face the music and consequences of duping the gullible buyers, of their hard-earned money. In the public notice, it has specifically been mentioned by the GMADA that respondent No. 2 and appellant No. 1 are the sister concern. It is also apparent on record that before appellant No. 1 started marketing the project, not even an application has been filed by respondent No. 2, to get approval/sanction from the competent authorities, to launch the project. The information supplied vide letter dated 26.8.2014, referred to above, clearly states that not even a single application quagranting sanction to the project, has been received and dealt with, by the Competent Authority. In connivance with each other, the appellants and respondent No. 2 committed a criminal offence of cheating. As per established law, builder cannot sell its property, unless and until proper approvals/sanctions have been obtained by it, from the Competent Authorities. It appears from the reading of documents on record that instead of selling a unit in a project, respondent No. 2 in a very arbitrary manner, sold its share in a joint land measuring approx. 3,807 acres, bearing Hadbast No. 326, Khewat No. 92, Khatauni Nos. 254-352, at Village Mirzapur, District Mohali, Punjab. There is nothing on record that said land was ever partitioned.

We are in complete agreement with the view taken by the State Commission.

The principle of law, laid down in the aforesaid case, is fully applicable to the present case. In view of above, it can safely be said that by adopting unfair trade practice, the project was sold/launched.

10. No doubt a plea was also taken by the opposite parties, in their written version that the complainant refused to sign the buyers agreement issued to her. It may be stated here that not even a single document has been placed on record, to prove this version. Had the said agreement been allegedly issued in favour of the complainant, by the opposite parties, then definitely they could have produced some evidence, in that regard but they failed to do so. As such, an adverse inference could very well be drawn that such a stand has been taken by the opposite parties, for the first time, in their written version, just to save their skin, and as such, the same stands rejected.

11. The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs. 20,26,400 deposited by her, towards the said unit. It has been held above that the opposite parties failed to deliver possession of the unit, in question, by the stipulated date, or even as on today for want of construction; basic amenities, etc. The complainant cannot be made to wait for an indefinite period, for delivery of possession of the unit purchased by her. Furthermore, non-delivery of possession of the unit, in question, by the stipulated date, is a material violation on the part of the opposite parties and amounts to deficiency in providing service and adoption of unfair trade practice. It is settled law that when there is a material violation on the part of the builder, in not handing over possession of units/plots by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage (in the present case not even offered) and on the other hand, can seek refund of amount paid. It was so held by the National Commission, in a case titled as Aashish Oberai v. Emaar MGF Land Limited, (NC)Consumer Case No. 70 of 2015, decided on 14 Sep., 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held as under:

I am in agreement with the learned Senior Counsel for the complainants that considering the default on the part of opposite party Nos. 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.

Not only as above, in a case titled as Brig. Ajay Raina (Retd.) and Another v. M/s. Unitech Limited, Consumer Complaint No. 59 of 2016, decided on 24.5.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Honble National Commission, ordered refund to the complainants, while holding as under:

Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. v. Dr. Manuj Chhabra, First Appeal No. 1028 of 2015, decided on 19.4.2016, the National Commission, under similar circumstances, held as under:

I 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.

12. Under above circumstances, it is held that since there was a material violation on the part of the opposite parties, in not offering and handing over possession of the unit, in question, by the stipulated date, or even till date, as such, the complainant is entitled to get refund of amount paid by her.

It is to be further seen, as to whether, interest, on the amount refunded, can be granted in favour of the complainant. It has been proved on record that an amount of Rs. 20,26,400 was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the opposite parties, for their own benefit. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Honble Supreme Court of India, in UOI v. Tata Chemicals Ltd., I (2015) SLT 11 (Supreme Court) (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs. 20,26,400 along with interest, from the respective dates of deposits till realization.

No other point, was urged, by the contesting parties.

13. For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties, jointly and severally, are directed as under:

(i) To refund the amount of Rs. 20,26,400 to the complainant, along with interest @12% p.a., from the respective dates of deposits onwards, less compensation amount, if any, paid to her (complainant) under the combo plan, as indicated by her (complainant).

(ii) To pay compensation, in the sum of Rs. 1 lac, 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. 33,000 to the complainant.

(iv)The payment of awarded amounts, in the manner mentioned at Sr. Nos. (i) to (iii), shall be made, within a period of 2 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at Sr. No. (i) shall carry penal interest @15% p.a., instead of @ 12%, from the date of filing of this complaint and interest @ 12 % p.a., on the amounts mentioned at Sr.Nos. (ii) and (iii) also, from the date of filing of this complaint, till realization.

1. However, it is made clear that, if the complainant, has availed loan facility from any banking or financial institution, for making payment of instalments towards the said unit, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by her (complainant).

2. Certified Copies of this order be sent to the parties, free of charge.

3. The file be consigned to Record Room, after completion.

Complaint partly allowed.