26 May 2020


Judgments

State Consumer Disputes Redressal Commission

Avneet Kaur Vs. Emaar MGF Land Private Ltd. and Ors.

MANU/SF/0012/2018

25.04.2018

Consumer

Whenever money has been received by a party and when its refund is ordered, right to get interest follows, as a matter of course

In facts of present case, the complainant purchased plot in Central Greens, Sector 105 and the total sale price of the plot, in question, was fixed at Rs. 40,82,394. Thereafter, Plot Buyer Agreement was signed and executed between the parties at Chandigarh. As per Clause 8 of the Agreement, possession of the plot was to be given within a maximum period of three years. Thereafter, the aforesaid plot was transferred in the name of the complainant. The complainant paid the total amount of Rs. 40,82,395/- to the Opposite Parties in respect of the plot, in question. It was further stated that, despite receipt of the huge amount from the complainant and repeated visits & letters/emails, the Opposite Parties failed to give possession of the plot, in question. It was further stated that permissions for raising colony/development of the land is not there. It was further stated that, the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 was filed.

Protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986." Recently, the larger Bench of the National Commission in a case titled as Aftab Singh v. Emaar MGF Land Limited & Anr., has held that, an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

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 from the record, that Plot Buyer's Agreement was executed between the parties at Chandigarh. Since, as per the documents, a part of cause of action arose to the complainant, at Chandigarh, Commission has got territorial Jurisdiction to entertain and decide the complaint.

Since, it has been admitted by the Opposite Parties, in their written statement that, possession would be offered shortly to the complainant. It means that, the Opposite Parties are not ready to hand over possession of the plot to the complainant within the stipulated period as mentioned in the Agreement or even at the time when the complaint was filed. Not only this, the amount deposited was also not refunded to the complainant, as such, there is continuing cause of action, in their favour. Under these circumstances, it is held that the complaint is not barred by time.

It was clearly mentioned in Clause 8 of the Agreement that, possession of the unit will be delivered by the Opposite Parties, within a maximum period of three years from the date of execution of the Agreement, subject to force majeure circumstances or reasons beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 3 years from the date of execution of the Agreement, as such, time was, unequivocally made the essence of contract.

Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word endeavour/tentative/proposed was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer's Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.

The Opposite Parties failed to deliver actual physical possession of the unit, complete in all respects, to the complainant, within the stipulated period, as mentioned in the Agreement or even by the time when the complaint was filed, as the Opposite Parties in their written statement clearly stated that possession would be offered shortly to the complainant. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by her. The Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her.

An amount of Rs. 40,82,394/-, 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. There is no dispute that, for making delayed payments, the Opposite Parties were charging heavy rate of interest (compounded @15% p.a.) as per Clause 3 of the Agreement, for the period of delay in making payment of installments. 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. In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs. 40,82,394, alongwith interest @10% p.a., from the date of transfer of the plot.

Relevant

Aftab Singh v. Emaar MGF Land Limited & Anr.

Tags : Plot Possession Deficiency Compensation

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