Jasbir Singh, J. (President)

1. By this order, we propose to dispose ofaforesaid four consumer complaints. Arguments were heard in common, in theabove cases, as the issues involved therein, except minor variations, here andthere, of law and facts are the same. In all the complaints, the complainantsare original allottees and have sought refund of the amount deposited towardsprice of the units, respectively, purchased by them, in the respective projectsof the opposite parties. At the time of arguments, on 26.04.2017 it was agreedby Counsel for the contesting parties, that facts involved in the abovecomplaints, by and large, are the same, and therefore, all the four complaintscan be disposed of, by passing a consolidated order.

2. To dictate order, facts are being takenfrom consumer complaint bearing No. 733 of 2016, titled as Smt. Monica Hira Vs.M/s. ACME Builders Pvt. Ltd. and another. The complainant purchased aresidential flat, for her personal use, in a project, launched by oppositeparty No. 1, named "ACME Floors", Sector 110, TDI City, SAS Nagar,Mohali, on 02.11.2012. At the time, when project was launched, very rosypicture qua its salient features was given. It was promised that the projectwill be equipped with housing facilities, club facilities and other facilitiesrequired for quality public living. When application Annexure C-1 was moved on02.11.2012, the complainant paid an amount of Rs. 5,40,000/-, as bookingamount. Receipt Annexure C-5 qua payment of the said amount was issued byopposite party No. 1 on 28.12.2012. Vide letter at page 16 of the file, she wasprovisionally allotted unit No. 1988, 1st floor, measuring 1050 square feet, inthe said project. Clause 3 of Annexure-A, attached with the said letter readsthus:-

"The offer of allotment shall be madewithin 12 months from date of application. At the receipt of the offer ofallotment, the applicant shall accept the offer within 15 days of receipt ofoffer of allotment by written communication. If the communication is notreceived within 15 days it shall be deemed to be accepted by the company.Thereafter the allotment/allocation of a Floor shall be made on payment ofbalance amount as per Annexure B."

3. It was undertaken by opposite party No.1 that final allotment shall be made within 12 months, from the date ofapplication i.e. from 02.11.2012. It was mandatory for the applicant to acceptallotment made, within 15 days, on receipt of communication and in case offailure to opt such, it was provided that it shall be deemed that the applicanthad accepted the offer made. Total price of the unit was fixed at Rs.25,75,625/-, including external development charges and payment plan was offeredas subvention 10% of the amount was to be paid at the time of booking; another10% within 45 days of booking and rest of the amount i.e. 80% was to bedisbursed by the bank against loan raised, as per stages of construction. Atthe time of booking, promise was made to hand over possession of the unit,within 24 months, from the date of making payment. Buyers Agreement was notoffered for signing despite many requests made by the complainant. It isnecessary to mention here that an amount of Rs. 1,44,884/- was paid by thecomplainant to opposite party No. 1 on 08.08.2013, towards EDC and Service Tax.

It is specific case of the complainant thatthe unit was changed from 1988, 1st Floor to flat No. 2025, 1st Floor, in thesaid project. Buyers Agreement was got signed on 22.01.2014 i.e. after a gapof more than one year, from the date of making application to book the flati.e. from 02.11.2012. Thereafter, opposite party No. 1 issued letter dated20.02.2014 for execution of loan documents. Provisional allotment was issued infavour of the complainant on 28.02.2014, in respect of the relocated unit.Documents were sent to opposite party No. 1, as a result whereof, loan amountto the extent of Rs. 19.60 lacs, was sanctioned by opposite party No. 2, on25.02.2014, vide letter Annexure C-16, in the name of the complainant and herhusband Sh. Manjit Singh. Tripartite Agreement was signed between thecomplainant, opposite parties No. 1 and 2 on 31.03.2014. Loan was agreed to bedisbursed, as per stages of construction.

4. It is case of the complainant thatwithout affirming the stage of construction, opposite party No. 2 disbursed theentire amount of loan, to opposite party No. 1. As per terms and conditions ofthe tripartite agreement, EMIs were to be paid by opposite party No. 1, tilloffer of possession. However, without giving possession of unit, opposite partyNo. 2 started charging EMI @ Rs. 16,603/-, from the complainant and upto31.08.2016, the complainant had paid an amount of Rs. 83,015/-, for the said purpose.It is on record that as per terms and conditions of the Agreement, oppositeparty No. 1 committed to deliver possession of the unit, within a period of 24months, with extended period of six months. End date to hand over possessionwas fixed as 21.07.2016, Relevant Clause 16 of the agreement reads thus:-

"That the offer of possession of thesaid premises is likely to be delivered by the Company/Promoter to the Allotteewithin a period of 24 months with grace period of 6 months from the date of thisagreement subject to force majeure circumstances & on receipt of allpayments punctually as per agreed terms and on receipt of complete payment ofthe basic sale price and other charges due and payable up to the date of offerof possession according to the payment plan applicable to him. TheCompany/promoter on completion of the construction shall issue final callnotice to the Allottee who shall within 30 days thereof, remit all dues andtake possession of the Floor. In the event of his failure to take possessionfor any reason whatsoever, he shall be deemed to have taken possession of theallotted unit for purposes of payment of maintenance charges or any otherlevies on account of the allotted unit, but the actual physical possessionshall be given on payment of all outstanding payments as demanded by theCompany/Promoter. The Allottee would be liable to pay holding charge @ Rs. 10/-per sq.ft. per month if he fails to take possession within 30 days from thedate of issue of offer of possession."

5. It is necessary to mention here that fordelay caused, in handing over possession of the unit, there was no penaltyprovision, to be discharged by opposite party No. 1, in the said Agreement.

6. It was specifically stated that at thetime of launch of the said project, permissions were not available withopposite party No. 1. It was also stated that in not offering buyers agreementfor signing within a reasonable time, opposite party No. 1 has indulged intounfair trade practice. It was specifically alleged that till the date of filingof this complaint, possession of the unit, was not offered to the complainant,by opposite party No. 1. By stating as above, following prayer was made by thecomplainant:-

i. "The Opposite Party No. 1 bedirected to refund a sum of Rs. 5,40,000/- paid as booking amount alongwith Rs.1,44,884/- paid towards EDC and Service Tax, received by them towards thebooking of one unit/Flat No. 2025, 1st Floor, in "Acme Floors" at TDICity, Sector 110-111, SAS Nagar, Mohali.

ii. The opposite Party No. 1 be directed topay the interest @ 18% p.a. from the date of receipt of the payments, till thedate of filling of the present complaint and future interest @ 18% p.a. tillthe date of final actual payment by the Opposite party.

iii. The Opposite Party No. 1 be directedto refund the amount of Rs. 19,60,000/- so received by them from the O.P. No. 2directly to the O.P. No. 2(1).

iv. The Opposite Party No. 2 be directed torefund the amount received by them as pre EMI from the complainant to the tuneof Rs. 83,015/- until 31.08.2016 and future amount so received by them, untilthe disposal of the present complaint.

v. The Opposite Party No. 1 be directed topay a sum of Rs. 1,00,000/- towards the mental harassment and agony caused tothe complainant as well as for not developing the flat in time as promised bythem and further loss caused to the complainant in terms of visiting the officeof the Opposite party several times and for committing unfair trade practice,deficiency in service.

vi. The Opposite Party No. 1 be directed topay the litigation charges to the tune of Rs. 25,000/- towards the unwarrantedand uncalled for litigation."

7. Upon notice, separate replies were filedby the opposite parties.

8. Opposite party No. 1, in its writtenreply, did not controvert, the factual matrix of the case qua movingapplication by the complainant, to purchase a flat on 02.11.2012. It was statedthat flat No. 1988 was earlier allotted to Smt. Savita Pandey and Sh. DamodharMishra, original allottees. However, the same was transferred in favour of thecomplainant thereafter. Signing of the Builder Buyer Agreement on 22.01.2014,is also admitted. It was admitted that provisional allotment of the relocatedunit was made on 28.02.2014. It was stated that the complainant was relocatedto another unit aforesaid, on a request made by her vide letter Annexure R-1.Buyers agreement was signed for flat No. 2025, First Floor, in the saidproject. It was stated that 20% of the amount was paid by the complainant andrest (80%) was paid, by raising loan. It was averred that possession of theunit was agreed to be delivered within 24 months plus grace period of sixmonths, from the date of signing the said Agreement. Interest amount towardsloan raised was agreed to be paid by opposite party No. 1, till such time,offer of possession was made to the complainant. Qua construction at the spot,it was specifically stated in para No. 4 of the preliminary objections that"In the present case the work of the unit is in full swing and theopposite party will handover the offer of possession shortly". It wasstated that upto Feb. 2017, opposite party No. 1 has paid an amount of Rs.4,75,000/- towards interest to opposite party No. 2, against the loan accountof the complainant. In para No. 4 of the reply on merits, it is againreiterated that construction of the unit is in full swing and possession islikely to be delivered shortly. Payment of amount paid towards EDC and servicetax, as mentioned in the complaint, by the complainant, has not beencontroverted. It was stated in para No. 8 of the reply on merits that theproject was launched after obtaining all necessary approvals/clearances fromthe Govt. Departments. It was further stated that delay in handing over possessionhas occurred on account of force majeure circumstances. In para No. 8 of replyon merits, it was again asserted that work is in full swing and possession ofthe unit is almost ready to move and offer thereof is likely to be madeshortly.

9. Reply was signed on 14.02.2017.Thereafter, by moving an application, few documents such as occupationcertificate, offer of possession dated 29.03.2017 etc., were sought to beplaced on record. Arguments in the application for placing on record the saiddocuments were heard on 26.04.2017. Since, the said documents were veryessential for the just decision of this complaint, the same were ordered to beplaced on record, vide separate order. Documents, through the said applicationwere placed on record, to show that permission was granted by the CompetentAuthority to occupy/use the ground floor/first floor/second floor on 19.07.2016(Annexure R-9) in the said project and thereafter, possession letter on29.03.2017. Annexure R-10, was sent offering unit, in question, to thecomplainant. Photographs were placed on record to show that construction at thespot was complete. Jurisdiction of this Commission to entertain and decide thiscomplaint is not disputed.

10. Opposite party No. 2 in its replystated since the loan was raised by the complainant, as such, she cannot washof her hands to repay the same. It was averred that the amount of loan wasdisbursed, as per the stages of construction and instructions given by thecomplainant herself. It was stated that, in case, this Commission comes to theconclusion that the complainant is entitled for refund of the amount paid,opposite party No. 2 shall have the first lien, on the amount due to be paid toit.

11. In the rejoinder filed, the complainantreiterated the averments contained in the complaint and repudiated thosecontained in written version of opposite party No. 1.

12. The parties led evidence in support oftheir cases.

13. We have heard the contesting partiesand have gone through the evidence and record of all the cases, very carefully.

14. At the time of arguments, it wasvirtually admitted by Counsel for opposite party No. 1 that offer of possessionis delayed by few months. He vehemently contended that for the delay caused,opposite party No. 1 is ready to pay reasonable compensation to thecomplainant. He has further contended that the complainant was only aninvestor. She cannot be termed as potential user of opposite party No. 1. In away, it was stated that investment was made for future gains, as the prices ofproperty are not good at present, the complainant is withdrawing from theconcluded contract. It was further stated that in that event, the earnest moneycan be forfeited. To say so, reliance was placed on the ratio of judgmentpassed by the Honble Supreme Court of India, in H.U.D.A. and another Vs. KewalKrishan Goel and Ors., : 1996 SCC (4) 249. It was stated thataverments to the extent that construction was not complete at the spot werewrong. Reference was made to the photographs placed on record, by moving anapplication, referred to above. It was also stated that large number ofconsumers have got possession of the units and people are living in the projectlaunched by opposite party No. 1.

15. On the other hand, Counsel for thecomplainant has vehemently contended that opposite party No. 1 has breachedmaterial terms and conditions of the Agreement, by not offering possession ofthe unit, in time and furthermore, by launching the project, without gettingapprovals and also by accepting booking amount, without offering BuyersAgreement, for signing within reasonable time, it has indulged into unfairtrade practice. It needs to be punished. It was further stated that thecomplainant has suffered material loss. She has purchased the unit for herresidential purposes. On account of non delivery of possession of the unit, intime, great loss has been caused to her.

16. First of all, we have to see that as towhether, there is any fault on the part of opposite party No. 1, as alleged bythe complainant or not. It is proved on record that the project was launched inthe year 2012. An amount of Rs. 5,40,000/-, as booking amount, was acceptedagainst an application filed by the complainant on 02.11.2012. Provisionalreceipt qua that amount was issued on 28.12.2012. Total price of the flat wasfixed at Rs. 25,75,625/-. The complainant opted for subvention scheme, on thebasis of tripartite agreement dated 31.03.2014, referred to above.

It is an admitted fact that BuyersAgreement in respect of the unit, in question, (No. 2025) was signed on22.01.2014. The very fact that Buyers Agreement was not offered for signingafter receipt of booking amount, within a reasonable time, say two to threemonths, would amount to adopting unfair trade practice. It was also earlier sosaid by this Commission, in a case titled as Usha Kiran Ghangas Vs. DLF HomesPanchkula Private Limited, Complaint Case No. 93 of 2016, decided on02.06.2016. Relevant portion of the said case, reads thus:-

"The opposite parties are also guiltyof adoption of unfair trade practice. It is on record that the complainantbooked the unit, in question, in the project aforesaid, on 16.02.2011. She wasallotted unit, vide letter dated 23.02.2011, on which date, she had paid an amountof 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 BuyersAgreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyers Agreement, for signing in a reasonabletime, the opposite parties also committed unfair trade practice. Thecomplainant is a widow. Her interest needs to be protected".

As such, by not offering Agreement, forsigning in a reasonable time, but after a long delay of about more than oneyear of accepting booking amount, opposite party No. 1 committed unfair tradepractice and is also deficient in providing service.

17. Further, it was specifically alleged bythe complainant in para No. 8 of her complaint that the project was launched,at the time, when permissions/approvals were not available with opposite partyNo. 1. The said averment has been denied by opposite party No. 1, stating thatapprovals were available with it, at the time, when the project, in question,was launched. However, no evidence has been placed on record, in the shape ofcopy of certificate for grant of change of land use; permission to constructthe units; approvals of building layout plans etc., by opposite party No. 1, ifobtained from the Competent Authorities. Similar issue came up forconsideration in respect of the same builder i.e. opposite party No. 1, beforeDistrict Forum-I, U.T., Chandigarh, in large number of cases, and in the caseof Baljit Grover and another Vs. ACME Builders Pvt. Ltd., Consumer ComplaintNo. 537 of 2015, decided on 20.04.2016, a specific finding was returned by thesaid Forum that when project was launched (in that case, booking was made on21.10.2012), no permissions/approvals/clearances were available with oppositeparty No. 1. As such, the complaint was allowed by the Forum, ordering refundof amount paid with interest, compensation and litigation expenses. No appealwas filed against the said order, passed by the Forum.

By launching the project, in question,without any necessary permissions/approvals, opposite party No. 1, adoptedunfair trade practice, on this count too.

18. Not only as above, in the bookingapplication Annexure C-1, in Annexure-A attached with it, it is specificallymentioned that offer of allotment shall be made within 12 months from the dateof application. However, as is evident from the facts of the case, what to talkof making offer of allotment, even Buyers Agreement was not got executedwithin a reasonable time, as held above.

19. It has also come on record thatpossession of the unit was committed to be offered within a period of 24months, with extended period of 6 months, from the date of signing the BuyersAgreement dated 22.01.2014 i.e. on or before 21.07.2016 but even that was notdone by opposite party No. 1.

20. Contention of Counsel for thecomplainant that by the end date, the unit, in question, was not ready forpossession, appears to be correct. To say so, reference has been made to thephotographs placed on record as Annexure C-7, in consumer complaint No. 777 of2016, titled as Nitin Sharma and another Vs. ACME Builders Pvt. Ltd. Perusalthereof indicates that at the time, when this complaint was filed, developmentand construction at the spot was not complete. Contention of Counsel foropposite party No. 1 that certificate of occupation was issued by theAuthorities concerned on 19.07.2016 (R-9) appears to be a made-up story. Thesaid document and the document dated 29.03.2017 (R-10) offering possession ofthe unit were placed on record, by moving an application bearing No. 401 of2017, in the month of March 2017. Reply in this case was filed in the month ofFebruary 2017. As has been held in earlier part of this order, at every stage,in the written reply, it was stated that construction at the spot is going onand it is likely to be completed in near future and thereafter possession willbe offered. Furthermore, if the unit was complete in all respects, in the monthof July 2016 and occupation certificate was issued as alleged, it is verystrange that in none of the cases, possession was offered, immediately ongetting occupation certificate. It appears that issuance of occupationcertificate is a made-up story. Construction was not complete by the end dateand there is delay of offer of possession in these cases. As such, the offer somade vide letter dated 29.03.2017, and that too during pendency of thecomplaint, is nothing but a paper possession and is not sustainable in the eyesof law.

Contention of Counsel for opposite partyNo. 1 that for the delay caused, opposite party No. 1 is ready to compensatethe complainant is of no use. It is settled law that when there is a materialviolation on the part of the builder, in not handing over possession by thestipulated date, the purchaser is not bound to accept the offer, even if thesame is made at a belated stage and on the other hand, can seek refund ofamount paid. It was so said by the National Commission, in a case titled asAashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015,decided on 14 Sep. 2016, wherein, under similar circumstances, while negatingthe plea taken by the builder, it was held as under:-

"I am in agreement with the learnedsenior counsel for the complainants that considering the default on the part ofopposite parties No. 1 and 2 in performing its contractual obligation, thecomplainants cannot be compelled to accept the offer of possession at thisbelated stage and therefore, is entitled to refund the entire amount paid byhim along with reasonable compensation, in the form of interest."

Not only as above, in a case titled as BrigAjay Raina (Retd.) and another Vs. M/s. Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016 , wherein possession was offered after a longdelay, this Commission, while relying upon the judgments rendered by theHonble National Commission, ordered refund to the complainants, while holdingas under:-

"Further, even if, it is assumed forthe 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. Vs. Dr. Manuj Chhabra, First Appeal No. 1028 of2015, decided on 19.04.2016, the National Commission, under similarcircumstances, held as under:-

"I am of the prima facie view thateven if the said offer was genuine, yet, the complainants was not obliged toaccept such an offer, made after a lapse of more than two years of committeddate of delivery".

Under these circumstances, the complainantis held entitled to get refund of amount deposited by her, and cannot be forcedto accept possession of the unit, in question, which otherwise has been held tobe a paper possession, by this Commission. Furthermore, for taking shelterunder the force majeure circumstances, opposite party No. 1 was required toplace on record, cogent and convincing material, but it failed to do so.

In view of above facts of the case,opposite party No. 1 is also under an obligation to compensate the complainant,for inflicting mental agony and causing physical harassment to her, as alsoescalation in prices.

21. Further contention of Counsel foropposite party No. 1 that the complainant is withdrawing from the concludedcontract, as such, earnest money paid by her, can be forfeited, is also liableto be rejected. As has been held in earlier part of this order, the materialbreach of terms and conditions has been committed by opposite party No. 1. Theproject was sold, when requisite permissions were not available. BuyersAgreement was not sent for signing, within a reasonable time. Allotment was notmade, as committed and further possession was also not delivered within thecommitted period. On the other hand, possession so offered vide letter dated29.03.2017, has been held to be a paper possession, because still oppositeparty No. 1 is saying that construction and development work is going at thesite, on full swing and possession of the unit will be delivered in nearfuture. Under above circumstances, it is opposite party No. 1 to be blamed andnot the complainant.

Reliance placed by Counsel for oppositeparty No. 1, upon H.U.D.A. and anrs. case (supra) is of no help to oppositeparty No. 1. That was a case, where the complainant of his own, after makingthe initial payment, showed his inability to make further payment and made arequest to the HUDA Authorities to refund the amount paid by him. Under thosecircumstances, taking note of the terms and conditions of the allotment letter,it was said that the HUDA was justified in forfeiting the earnest money.However, in the present case, position is altogether different.

22. Contention of Counsel for oppositeparty No. 1 that the complainant cannot be termed as potential user/consumer,is also liable to be rejected. It is specifically alleged by the complainantthat the unit was purchased for her personal use. She made the payment of anamount of Rs. 5,40,000/- and subsequent thereto also, some more amount waspaid. She was hopeful to get possession of the unit, in time; however, it wasnot done by opposite party No. 1. At the same time, there is nothing, on recordto show that the complainant is a property dealer and is indulged in sale andpurchase of property, on regular basis. In the absence of any cogent evidence,in support of the objection raised by opposite party No. 1, mere bald assertionto that effect, cannot be taken into consideration. In a case titled as KavitaAhuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd.: 2016 (1) CPJ 31 , by the National Consumer DisputesRedressal Commission, New Delhi, it was held that the buyer(s) of theresidential unit(s), would be termed as consumer(s), unless it is proved thathe or she had booked the same for commercial purpose. Similar view wasreiterated by the National Commission, in DLF Universal Limited Vs. NirmalaDevi Gupta, : 2016 (2) CPJ 316. The principle of law, laiddown, in the aforesaid cases, is fully applicable to the present case. Thecomplainant, thus, falls within the definition of a consumer, as defined underSection 2(1)(d) of the. Such an objection, taken by opposite party No. 1,in its written reply, therefore, being devoid of merit, is rejected.

23. Further contention was raised byCounsel for opposite party No. 1 that the equity is not on the side of thecomplainant, as she had paid very less amount and rest of the amount was raisedthrough loan tripartite agreement and EMIs were paid by opposite party No. 1,as such, balance of convenience lies in favour of opposite party No. 1 and notof the complainant. It is on record that to the intended purchasers, subventionscheme was offered by opposite party No. 1. In the tripartite agreement, it wasadmitted that till offer of possession of the unit, EMIs will be paid byopposite party No. 1 to opposite party No. 2. The arrangement appears to bebeneficial to opposite party No. 1. It had got assured payment at its hands.Despite entire payments available in its hands, opposite party No. 1 has failedto raise the construction, in time. The subvention scheme was accepted by thecomplainant, on an assurance, given by the builder on the ground that oppositeparty No. 1 would be remitting the interest component on the loan amount raisedby her, from opposite party No. 2. However, later on, the complainant wasforced to make payment of installments towards the said loan.

24. In consumer complaint No. 970 of 2016titled as Payal Vs. ACME Builders Pvt. Ltd., the unit was booked by thecomplainant by moving an application on 26.09.2012 Annexure C-1. She paid anamount of Rs. 2,50,000/- as booking amount on the said date. Total price of theflat was fixed at Rs. 25,75,625/-. Provisional allotment of the unit therein,was made to her on 07.08.2013. She failed to avail subvention scheme, thoughshe opted for the same. However, when she failed to sign the requisitedocuments, subvention scheme was turned into construction linked payment plan,vide letter 17.04.2014 Annexure C-10. It is her case that it was agreed tobetween the parties that fresh Buyers Agreement will be executed and toexecute the same, the original Agreement was given to opposite party No. 1, on08.08.2014.

The plea raised by the complainant appearsto be correct, when we look into the contents of email dated 07.08.2014Annexure C-6, written by her to representative of opposite party No. 1, whichreads thus:-

"Hi,

Nidhi got your email, thank you.

Now when Virendra Singh from Canara Bankwill give you the cheque of the balance amount to cover the 30% of the agreedpurchase price of Rs. 26,50,000/- please give him the receipt of the same thatyou have received the 30% amount.

Also give the receipt that you have got theold contract separately.

And accordingly let me know how will yougive me the new contract.

Also please clarify the contract will be onold date of February 2014.

Please note my current address in UK:

Payal-Flat 2, 69, Shaw Street, Liverpool,L6 1HL, U.K.

If you are posting anything before end ofthis month send it at this address.

(I will probably shift from this address inearly September.

Regards

Payal

0091 7466648729"

However, despite making commitment, freshAgreement was not got signed. The complainant sent email dated 28.05.2016before offer of possession, for refund of amount however, it was not done.Opposite party/builder was, thus, deficient in providing service and adoptedunfair trade practice, on this count too.

25. It is to be further seen, as towhether, interest on the amount refunded, can be granted in favour of thecomplainant. It is not in dispute that substantial amount was paid by the complainant,without getting anything, in lieu thereof. The said amount has been used byopposite party No. 1, for its own benefit. Paper possession of the unit, inquestion, has been pushed, during pendency of the complaint, only with a viewto defeat the genuine claim of the complainant(s). There is no dispute that formaking delayed payments, the opposite party No. 1/builder was charging heavyrate of interest @ 21% p.a. as per Clause 11 of the Agreement, for the periodof delay in making payment of instalments. It is well settled law that whenevermoney has been received by a party and when its refund is ordered, the right toget interest follows, as a matter of course. The obligation to refund moneyreceived and retained without right implies and carries with it, the saidright. It was also so said by the Honble Supreme Court of India, in UOI vs.Tata Chemicals Ltd (Supreme Court), : (2014) 6 SCC 335decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, thecomplainants, in all the complaints are certainly entitled to get refund of theamount deposited by them, alongwith interest, from the respective dates ofdeposits, till realization.

26. No other point, was urged, by Counselfor the contesting parties, in all the complaints.

27. For the reasons recorded above, all thecomplaints are partly accepted, with costs, in the following manner:-

In consumer complaint bearing No. 733 of2016, titled as Smt. Monica Hira Vs. M/s. ACME Builders Pvt. Ltd. and another,opposite party No. 1/builder is directed as under:-

i. To refund the entire amount actuallypaid by the complainant from her own sources/pocket, at the time of booking andthereafter also, if any, towards price of unit, alongwith interest @ 10% p.a.,from the respective dates of deposits onwards.

ii. To refund the entire amount paid by thecomplainant to opposite party No. 2, towards equal monthly installments, on theloan amount raised vide tripartite agreement/loan agreement, referred to above.

iii. To repay the entire loan amount toopposite party No. 2, released by it, in favour of opposite party No. 1, inrespect of the unit, in question, under tripartite agreement alongwith pre-EMIinstallments, if any due, till date. It is also made clear that till the timethe entire loan amount is not repaid to opposite party No. 2, opposite partyNo. 1 shall be bound to pay the equal monthly installments to opposite partyNo. 2.

iv. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainant,as also escalation in prices.

v. To pay cost of litigation, to the tuneof Rs. 22,000/- to the complainant.

vi. The payment of awarded amountsmentioned at Sr. Nos. (i), (ii), (iv) and (v) shall be made by opposite partyNo. 1 to the complainant, within a period of 45 days, from the date of receiptof a certified copy of this order, failing which, the amount mentioned at Sr.No. (I) shall carry penal interest @ 11% p.a., instead of @ 10%, from therespective dates of deposits onwards, and interest @ 10 % p.a., on the amountsmentioned at sr. Nos. (ii), (iv) and (v), from the date of filing of thecomplaint, till realization, besides compliance of other directions given.

vii. Complaint against opposite party No. 2is dismissed with no order as to costs.

In consumer complaint bearing No. 777 of2016 of 2016, titled as Nitin Sharma and another Vs. ACME Builders Pvt. Ltd.,the opposite party is directed as under:-

i. To refund the entire amount actuallypaid by the complainants from their own sources/pocket, at the time of bookingand thereafter also, if any, towards price of unit, alongwith interest @ 10%p.a., from the respective dates of deposits onwards.

ii. To refund the entire amount paid, ifany, by the complainants, to the loan sanctioning Bank/ Financial Institution,towards equal monthly installments, on the loan amount raised vide tripartiteagreement/loan agreement, referred to above.

iii. To repay the entire loan amount to theloan sanctioning Bank/Financial Institution, released by it, in favour ofopposite party, in respect of the unit, in question, under tripartite agreementalongwith pre-EMI installments, if any due, till date. It is also made clearthat till the time the entire loan amount is not repaid to the loan sanctioningBank/ Financial Institution, the opposite party shall be bound to pay thepre-EMI Interest to the loan sanctioning Bank/Financial Institution, till theentire loan amount is repaid to it.

iv. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainants,as also escalation in prices.

v. To pay cost of litigation, to the tuneof Rs. 22,000/- to the complainants.

vi. The payment of awarded amountsmentioned at Sr. Nos. (i), (ii), (iv) and (v) shall be made by the oppositeparty to the complainants, within a period of 45 days, from the date of receiptof a certified copy of this order, failing which, the amount mentioned at Sr.No. (i) shall carry penal interest @11% p.a., instead of @10%, from therespective dates of deposits onwards, and interest @10 % p.a., on the amountsmentioned at Sr. Nos. (ii), (iv) and (v), from the date of filing of thecomplaint, till realization, besides compliance of other directions given.

In consumer complaint bearing No. 778 of2016, titled as Pankaj Saini and another Vs. ACME Builders Pvt. Ltd., theopposite party is directed as under:-

i. To refund the entire amount actuallypaid by the complainants from their own sources/pocket, at the time of bookingand thereafter also, if any, towards price of unit, alongwith interest @ 10%p.a., from the respective dates of deposits onwards.

ii. To refund the entire amount paid, ifany, by the complainants, to the loan sanctioning Bank/Financial Institution,towards equal monthly installments, on the loan amount raised vide tripartiteagreement/loan agreement, referred to above.

iii. To repay the entire loan amount to theloan sanctioning Bank/Financial Institution, released by it, in favour ofopposite party, in respect of the unit, in question, under tripartite agreementalongwith pre-EMI installments, if any due, till date. It is also made clearthat till the time the entire loan amount is not repaid to the loan sanctioningBank/Financial Institution, the opposite party shall be bound to pay thepre-EMI Interest to the loan sanctioning Bank/Financial Institution, till theentire loan amount is repaid to it.

iv. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainants,as also escalation in prices..

v. To pay cost of litigation, to the tuneof Rs. 22,000/- to the complainants.

vi. The payment of awarded amountsmentioned at Sr. Nos. (i), (ii), (iv) and (v) shall be made by the oppositeparty to the complainants, within a period of 45 days, from the date of receiptof a certified copy of this order, failing which, the amount mentioned at Sr.No. (i) shall carry penal interest @ 11% p.a., instead of @ 10%, from therespective dates of deposits onwards, and interest @ 10 % p.a., on the amountsmentioned at sr. Nos. (ii), (iv) and (v), from the date of filing of thecomplaint, till realization, besides compliance of other directions given.

In consumer complaint bearing No. 970 of2016, titled as Payal Vs. ACME Builders Pvt. Ltd., the opposite party isdirected as under:-

i. To refund the amount of Rs. 7,95,000/-,to the complainant, alongwith interest @ 10% p.a., from the respective dates ofdeposits onwards.

ii. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainant,as also escalation in prices.

iii. To pay cost of litigation, to the tuneof Rs. 22,000/- to the complainant.

iv. The payment of awarded amountsmentioned at Sr. Nos. (i) to (iii), shall be made, within a period of 45 days,from the date of receipt of a certified copy of this order, failing which, theamount mentioned at Sr. No. (i) shall carry penal interest @ 11% p.a. insteadof 10%, from the respective dates of deposits onwards, and interest @ 10 %p.a., on the amounts mentioned at Sr. Nos. (ii) and (iii), from the date offiling of this complaint, till realization.

v. However, it is made clear that, if thecomplainant has availed loan facility from any other banking or financial institution,for making above said payment towards the said unit, it will have the firstcharge of the amount payable, to the extent, the same is due to be paid by her(complainant).

28. Certified copy of this order, be placedon connected complaint filed, referred to above.

29. Certified copies of this order be sentto the parties, free of charge.

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

Pronounced 16.05.2017.

Monica Hira and Ors. vs. ACME Builders Pvt.Ltd. and Ors. (16.05.2017 - SCDRC Chandigarh) :