Atma Krishna Complainant(S) v. Orris Infrastructure Ltd. And Another Opp. Party(S).

2. The complaint was resisted by filing the written statement by the OPs. Both the parties filed affidavit evidence in the matter. Heard the learned counsel for the parties and perused the record.

3. Learned counsel for the complainant stated that as per the possession clause 5 of the apartment buyer agreement, the possession was to be handed over within 36 months with a grace period of six months from the date of allotment and the allotment is dated 9.8.2012. Accordingly, the possession was due in February, 2016. The OPs have not offered the possession so far. Therefore, the request for refund has been made. Vide letter dated 30.1.2013, the OP-1 had promised that the possession will soon be handed over and all common amenities of the project alongwith the facilities will be completed by 2014. The complainant has paid a sum of Rs.63,05,205.66 and this amount is reflected in the statement of account dated

2.8.2016.

4. The learned counsel for the complainant stated that an objection has been taken by the OPs that this Commission does not have the pecuniary jurisdiction to decide the present complaint as the amount of refund is only Rs.63,05,205.66 and even with interest @ 18% p.a. it will not reach to the figure of Rs.1 crore. In this regard, the learned counsel contended that as per the calculation submitted by the OP no.1, the amount of refund alongwith 18% p.a. interest upto the date of filing of the complaint has been stated to be Rs.92,59,592.66. The learned counsel also stated that if the interest is calculated upto 10.10.2017, the refund amount alongwith 18% p.a. interest comes to Rs.1,04,29,508/-. It was argued by learned counsel that a compensation of Rs.15 lakhs has also been sought as relief in the complaint. Hence, even if the calculation of the OP no.1 is taken into account, the figure crosses to more than Rs.1 crore if the compensation of Rs.15 lakhs is included and the amount is required to be included as per Section 21(a)(i) of the Consumer Protection Act, 1986. Moreover, it was further argued that in the light of the decision of the larger bench of this Commission in Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd., Consumer Complaint No.97 of 2016 decided on 7.10.2016, the total consideration alongwith compensation claimed is to be considered for deciding the pecuniary jurisdiction of the Consumer Forum. In the present case, the total consideration is more than Rs.1 crore and therefore, this complaint is very much maintainable before this Commission. It was further stated by learned counsel that even if only the amount of refund is considered alongwith interest upto filing of the complaint, the amount reaches to Rs.92,59,592.66 and if the complaint is rejected on this ground, the complaint will have to be filed before the State Commission and by that time, the interest would have increased to an amount which if added to the amount of refund, will definitely cross Rs.1 crore and the State Commission will not have the pecuniary jurisdiction to entertain this complaint. Hence, no purpose will be served if the complaint is rejected on this ground only.

5. It was further argued by the learned counsel for the complainant that there is no force in the objection raised by the OPs with regard to payment of interest on the amount of refund, because the compensation for delayed possession as per the apartment buyer agreement is not sufficient to compensate the complainant for the loss suffered. In support of his contention, the learned counsel referred to the following judgments:

i) Thangavel Palanivel and another Vs. M/s. DLF Southern Homes Pvt. Ltd., Consumer Complaint No.304 of 2015 decided on 29.8.2016 by this Commission (NC), wherein the following has been observed:

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"12. The last question which arises for consideration in this regard is as to whether the opposite party is liable to pay only the compensation stipulated in the Buyers Agreement or a compensation which commensurates with the loss suffered by the complainants on account of the deficiency on the part of the opposite party in rendering services to them. This question has been considered by this Commission in a number of cases including Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matters, decided on 08.6.2015. The following view taken in Satish Kumar Pandey (supra) is relevant in this regard:

"It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms. However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice. It was submitted by the learned counsel for the complainants that the term providing for payment of a nominal compensation such as Rs.5/- per square foot of the super area having become the order of the day in the contracts designed by big builders, a person seeking to buy an apartment is left with no option but to sign on the dotted lines since the rejection of such term by him would mean cancellation of the allotment. He further submitted that a person seeking to acquire a built up flat instead of purchasing a plot and then raising construction on it, therefore, is not in a position to protest resist the inclusion of such a term in the Buyer's Agreement, and has to rely upon the reputation of the builder, particularly if he is a big builder such as Unitech Ltd. He also submitted that the format of the Buyer's Agreement is never shown to the purchasers at the time of booking the apartment and if he refuses to sign the Buyer's Agreement on the format provided by the builder, not only will he lose the booking, even the booking amount/earnest money paid by him will be forfeited by the builder. I find merit in the above referred submissions of the learned counsel. A person who, for one reason or the other, either cannot or does not want to buy a plot and raise construction of his own, has to necessarily go in for purchase of the built up flat. It is only natural and logical for him to look for an apartment in a project being developed by a big builder such as the opposite party in these complaints. Since the contracts of all the big builders contain a term for payment of a specified sum as compensation in the event of default on the part of the builder in handing over possession of the flat to the buyer and the flat compensation offered by all big builders is almost a nominal compensation being less than .25% of the estimated cost of construction per month, the flat buyer is left with no option but to sign the Buyer's Agreement in the format provided by the builder. No sensible person will volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the contractor, when he is made to pay 18% compound interest if there is delay on his part in making payment. It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges compound interest @ 18% per annum in the

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event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Buyer's Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him. He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance. If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc. The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(r) (1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r) (1) of the Act are inclusive and not exhaustive, as would be evident from the use of word "including" before the words "any of the following practices. The view taken in Satish Kumar Pandey (supra) reiterated by this Commission in Swarn Talwar (supra) and the decision of this Commission, as noted earlier, was upheld by the Hon'ble Supreme Court.

Therefore, I have no hesitation in reiterating that the compensation which the builder has to pay to the buyers in such cases cannot be restricted to the compensation stipulated in the wholly one side Buyers Agreement and has to be based upon the loss suffered by the consumer on account of deficiency in the services rendered to him."

(ii) Jivitesh Nayal and another Vs. Emaar MGF Land Ltd. and another, CC No.34 of 215, decided on 2.11.2017, by this Commission, wherein the following was observed:

"8. In terms of Section 14(1)(e) of the Consumer Protection Act, if this Commission is satisfied that any of the allegations contained in the complaint about the services of the opposite party are proved it is required to issue an order to the opposite party directing it to remove the deficiencies in the services in question. In terms of Section 14 (1)(d) of the Act this Commission is also required to pass an order directing the opposite party to pay compensation to the complainants for any loss or injury suffered by them due to the negligence of the opposite party. If the builder, whose services are engaged by a buyer for construction of a residential house for him fails to complete the construction and deliver its possession on or before the date committed by him for the purpose, such an act on the part of the builder would be an act of negligence, causing loss or injury to the flat buyer. The term 'negligence' has not been defined in the Consumer Protection Act but as per its dictionary meaning, it is the failure to

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give enough care or attention especially when such an act has serious results for another person (Oxford Advanced Learner's Dictionary, New 8^th Edition). As per Black's Law Dictionary IX Edition, negligence includes the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. In the absence of force-majeure circumstances, a prudent builder in place of the opposite party would have been in a position to construct the flats and offer their possession to the complainants on or before the date committed for this purpose or at best within the grace period available under the BBA. By not delivering on the commitment made by it with respect to the delivery of the possession of the flats booked by the complainants, the opposite party certainly committed an act of negligence and since the said act of negligence has resulted in loss or injury to the complainants who have been deprived f the user of the flats booked by them, compensation in terms of Seciton14 (1)(d) of the Consumer Protection Act can be awarded to the complainants, against the opposite party.

Since the Act empowers this Commission to direct removal of the deficiencies in the service in question, the opposite party, in exercise of the aforesaid power of this Commission, can also be directed and in fact ought to be directed to complete the construction and deliver possession of the flats to the complainants at the earliest possible. Therefore, both the directions sought by the complainants viz. direction for completion of the construction and delivery of possession of the flats and the direction for payment f compensation for the period the possession is delayed are within the competence of this Commission under Section 14 of the Consumer Protection Act. Therefore, it is not correct to say that the complainants are seeking specific performance of the agreement they had executed with the opposite party. The specific performance of a contract can be sought before a Civil Court in terms of the provisions contained in the Specific Relief Act 1963. Neither this Commission is a Civil Court nor have the complainants invoked the provisions of the Specific Relief Act, 1963.

9. Also, I find no merit in the contention that the compensation stipulated in Clause 15(a) of the BBA is in the nature of a penalty attracting applicability of Section 74 of the India Contract Act. The aforesaid compensation is a unilateral and patently unfair term imposed by the builders upon the flat buyers. Having already paid the booking amount to the builder, they have no option but to sign on the dotted lines, since the failure to execute the agreement unilaterally drafted by the builder and imposed upon the flat builders is likely to result in the booking amount being forfeited by the builder. Therefore, executing an agreement containing such a term is nothing, but a consent given under coercion and cannot be said to be the result of the exercise of a free consent on the part of the flat buyer. Moreover, a term to pay such a paltry compensation to the flat buyer in the event of default on the part of the builder, while making him pay exorbitant interest in the event of default or delay on his part is an absolutely unfair term. In fact, the incorporation of a term for payment of a paltry compensation to the buyer in the event of the failure of the builder to deliver possession within the time period committed by him, had become so wide spread and rampant that the

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Legislature had to step in by enactment of the Real Estate (Regulation & Development) Act, 2016 to statutorily require the builder to pay compensation in the form of interest at prescribed rate in the event of the possession being delayed or the buyer deciding to quit on account of the delay on the part of the builder in delivering upon the promise made by him. Therefore, irrespective of Clause 15(a) of the BBA, the complainants in my view are entitled to a just and fair compensation for the period the possession of the flats is delayed by the opposite party.

11. If a paltry compensation of say Rs.10/- per sq. ft. per month is awarded against a builder, it may lead to dangerous consequences since the builder may be tempted not to complete the construction and divert the money collected from the flat buyers for other purposes, in the hope that in the event of the buyer approaching a Court or a Consumer Forum, he can get away by paying a paltry compensation of Rs.10/- per sq. ft. per month to him. Paying such a meagre compensation would always be a win win situation for a builder who is likely to pay many times more if he goes to market for arranging finances which he gets by diverting the money collected from the flat buyers to other purposes. This Commission, therefore, ought to refrain from taking a view which would lead to such serious consequences, against the innocent flat buyers. I also find some merit in the contention of the complainants that in a situation where the builder despite taking money from the flat buyers does not utilize the whole of the said money only for the construction of the flat sold to him, the amount which the builder has collected from the flat buyers should be treated as a cash deposit with the builder who should pay adequate interest to the flat buyer for utilizing his money."

6. In respect of the point raised by the opposite parties that the complainant has breached the provision of the Apartment Buyer Agreemnt as he has stopped paying instalments and consequently as per Section 55 of the Indian Contract Act, 1872, the complainant is not entitled to any relief, the learned counsel for the complainant stated that this question has been considered by this Commission in Rakesh Mehta Vs. Emaar MGF Land Limited, CC No.653 of 2015, decided on 16.10.2017, wherein the following has been observed:

"5. This complaint was instituted way back on 10.8.2015, about two years before the occupancy certificate was obtained by the opposite party. Therefore, the opposite party was not in a position to offer possession of the flat to the complainant even after the complaint was instituted or within a reasonable period thereafter. The first prayer made by the complainant being for delivery of immediate possession of the flat and the opposite party not being in a position to offer the said immediate possession, he became entitled to the alternative relief of refund of the amount paid by him. Even otherwise, Section 55 of the Indian Contract Act expressly provides that 'when a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promise, if the intention of the parties was that time should be of the essence of the contract'. I therefore, find no merit in the submission that the complainant is

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not entitled to refund of the amount paid by him."

7. Learned counsel for the complainant further stated that the plea taken by the OPs in respect of the force majeure conditions is not valid. First of all, the order of the Hon'ble High Court referred to by the OP no.1 was only in respect of not drawing the ground water. The High Court order does not put ban on the construction activity nor any ban on use of water. The OPs should have brought water from outside and should have used the same for construction activity. Thus, this order of the Hon'ble High Court cannot be treated as force majeure condition. Obviously, the OPs should have taken remedial measures. Once the apartment buyer agreement is signed between the parties, the OPs have to keep in mind the adverse situations that may arise and they should be ready to counter those conditions so that complainant need not suffer for the same. In support of his argument, the learned counsel referred to the judgment in M/s. IREO Fiveriver PVt. Ltd. vs. Surinder Kumar Singla and another, FA No.1358 of 2016, decided on 29.11.2016 by this Commission, wherein it has been observed:

"14. We have considered the rival contentions and perused the record. On careful consideration of record, we do not find merit in the contention of the appellant. In our considered view, the protection of Force Majeure clause in the agreement between the parties is not available to the appellant builder for the reason that it is the stand of the appellant that vide letter dated 16.03.2011, DTCP Haryana had directed the appellant not to carry out any earth work or construction work at the subject site without obtaining no objection certificate from the Irrigation Department Haryana. It is also admitted case of the appellant that ultimate clearance for undertaking construction work was received vide letter dated 24.04.2015 of National Board of Wild Life granting clearance for the development project. Despite of the aforesaid restraint on the appellant for carrying out development work, admittedly, the appellant executed Plot Buyer's agreement with the respective complainants during the period 23.06.2011 to 23.04.2012. It is not the case of the appellant that while entering into the agreement, the appellant disclosed about the restraint letter dated 16.03.2011 issued by DTCP Haryana. Thus, it is clear that appellant by concealment of material fact defrauded the respondents / complainants to execute the agreement contained Force Majeure clause, which in our considered opinion is unfair practice amounting to deficiency in service. As the agreement containing Force Majeure clause has been executed by concealment of material fact on the part of the opposite party, the aforesaid agreement is not binding on the complainants. Thus, appellant cannot take benefit of said clause. In view of the discussion above we do not find fault with finding of State Commission holding the appellant to be guilty of deficiency in service and directed the appellant to refund the money paid by the respective complainants with 12% interest besides payment of compensation and litigation expenses."

8. Based on the above arguments, learned counsel for the complainant submitted that the amount paid by the complainant to the OPs be refunded to the complainant. It was stated by learned counsel that the amount has been paid to OP-1 though the apartment buyer agreement

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has been signed by both the OPs.

9. On the other hand, learned counsel for OP-1 stated that OP-1 is only the land owner and the OP-2 is the developer. There is a development agreement between OP-1 and OP-2 and this was in the knowledge of complainant. As per this development agreement, 35% units are to be sold by OP-1 and 65% units are to be sold by OP-2. In this background, it is to be considered that the project has been delayed by OP-2 and therefore, OP-1 is not responsible for paying any compensation for the delay in handing over the possession.

10. It was further argued by learned counsel for OP-1 that in the present case this Commission does not have pecuniary jurisdiction to decide the present case as the relief claimed is for refund of Rs.63,05,205.66 only. In support of his arguments, learned counsel referred to the decision in Shahbad Cooperative Sugar Mills Vs. National Insurance Company Ltd., decided on 2.4.2003, II (2003) CPJ 81 (NC) wherein it has been observed that interest will not be added to the value of goods or services for deciding the pecuniary jurisdiction of the consumer forum.

11. Apart from that, some benches of this Commission have also taken a view that judgment of the Larger Bench of Ambrish Kumar Shukla (supra) is not applicable on refund cases where the value of service is to be taken as the amount of refund. The learned counsel argued that even if 18% p.a. interest only is added to the amount of refund till the date of filing of the complaint, the figure reaches only upto Rs.92,59,592.66. Clearly the additional compensation of Rs.15 lakhs demanded in the complaint cannot be added to this figure as interest is also in the form of compensation only. Accordingly, this Commission does not have the pecuniary jurisdiction to entertain the present complaint. In support of his arguments, learned counsel referred to the judgment of this Commission in Harmanjit Kaur and another Vs. M/s. Ansal Hi-Tech township Ltd., Consumer Case No.236 of 2017, decided on 7.2.2017, wherein it has been observed:

"3. On perusal of the prayer clause it transpires that the complainants are seeking refund of principal amount paid by them alongwith 24% interest p.a. from the respective dates of payment till realization of the amount or in the alternative possession of the apartment in question. Besides, the interest, the complainants have also sought Rs.50 lakhs as compensation. The relief claimed by the complainants is highly unrealistic. On one hand they are seeking refund of the entire consideration with 24% interest which is in the nature of compensation and on the other hand they are also claiming Rs.50 lakhs as compensation for undue harassment and loss caused. Even if the opposite party has failed to fulfill their part of the promise, the complainant cannot claim compensation under more than one head. They can either claim lumpsum compensation for the damages suffered by them or the interest on the amount paid. It may also be noted that 24% interest claimed by them is on higher side. If the complainants are interested in refund with interest, then also the consideration amount of Rs.44,69,452/- with 24% interest cannot be more than rupees one crore and if the complainant is interested in lumpsum compensation of Rs.50 lakhs, the value of services plus compensation works out to be Rs.94,69,452/-. In both the eventualities, the

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value of the complaint for the purpose of pecuniary jurisdiction is less than rupees one crore."

12. Learned counsel for OP-1 argued that as per clause 4 of the allotment letter, the complainant was required to make payments as per payment plan attached to the allotment letter. The complainant had opted for a construction linked plan but has ony made payments upto 7^thstage and stopped thereafter. Thus, the complainant became a defaulter as the remaining amount was not paid even after notices were sent by the OP. Notice-cum-demand letter was sent on 2.8.2016 wherein a demand of Rs.26,62,552/- was made which was due on the complainant. Instead of paying the due amount, the complainant asked for refund even before due date of handing over possession. As per clause 4.7 of the apartment buyer agreement, OP-1 is entitled to terminate the agreement and is also entitled to forfeit earnest money equal of 10% of the total consideration and to deduct other charges including the brokerage charges.

13. Learned counsel for OP-1 further argued that according to clause 4.3 of the apartment buyer agreement it has been clarified that time is of the essence under this agreement and borrower shall make the timely payment in respect of each instalment. Clearly, the complainant has agreed to this clause and therefore, he is a clear defaulter and no relief can be granted to a defaulter in the consumer complaint. It was argued that total consideration of the flat is Rs.1,09,15,227/- and if the allotment is cancelled, and refund is ordered, then OP is entitled to forfeit 10% of this amount as earnest money as per the agreed clause.

14. It was further argued by learned counsel for OP-1 that as per Section 55 of the Indian Contract Act, if a party to the contract does not perform its part/obligation, he is not entitled to ask for relief under the contract from other party. In this regard, learned counsel stated that the construction of the building is depending upon the timely payment by the buyer and if the buyer does not pay instalment in time, the buyer becomes defaulter in the performance of his part/obligation. Therefore, under Section 55 of the Contract Act the complainant cannot demand relief as per the agreement from the OPs. To support his arguments, learned counsel referred to the following judgment:

DLF Southern Town Pvt. Ltd. vs. Dipu C. Seminlal, RP NO.1973 of 2014 decided on 7.1.2015 by this Commission, wherein it has been observed as under:

"9. Complainant filled application form for provisional allotment on 30.9.2008 and rest of the amount was to be paid in instalments within 27 months of booking. Complainant did not pay any of the instalments and OP vide demand notice dated 31.10.2008, 4.12.2008, 17.12.2008, 31.12.2008, 2.2.2009, 2.3.2009 and 6.3.2009 asked complainant to remit payment, but complainant did not remit payment. OP also asked complainant from time to time to return duly signed Apartment Buyers Agreement, but that was not sent by complainant to OP. As per letter dated 28.1.2010, OP asked complainant to deposit Rs.10,60,326/- outstanding against him on or

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before 1.3.2010, failing which, allotment will be cancelled and earnest money will be forfeited. Later on, by notice dated 10.3.2010, issued by complainants Advocate it was expressed that complainant was ready to remit unpaid instalments or in the alternative demand of Rs.4,00,000/- deposited was made which was denied by OP vide reply dated 9.4.2010. It was specifically stated in this reply that OP was to complete construction within 36 months from date of execution of the agreement subject to allottee making timely payment of instalments and when payment was not made by the complainant, OP vide letter dated 28.7.2010 cancelled allotment and forfeited Rs.4,00,000/- earnest money and intimated to the complainant that no balance was refundable. After this letter, complainant filed complaint before District Forum with aforesaid prayer.

12. He has also placed reliance on judgment of this Commission in R.P. No. 624 of 2007 - Sahara India Commercial Corpn. Ltd. & Anr. Vs. C. Madhu Babu in which also similar order was passed as in P. Gajendra Chary (Supra). He further placed reliance on judgment of Hon'ble Apex Court reported in (2000) 4 SCC 120 - Prashant Kumar Shahi Vs. Ghaziabad Development Authority in which it was observed as under:

"4….Having failed to perform his part of the contract, the appellant cannot be permitted to urge that he is not liable to pay the balance amount along with interest as according to him the respondent- authority had failed to deliver possession as per terms of the brochure. The authority was not expected to deliver possession in the absence of the payment of the agreed amount".

13. In the light of aforesaid judgments, it becomes clear that as complainant has not paid any subsequent instalments and committed default in making payments of instalments and also committed default in returning back duly signed agreement, OP had every right to forfeit amount of earnest money deposited by complainant and learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal."

15. Learned Counsel for OP-1 further contended that the interest on the refund amount can only be awarded under the provisions of the Interest Act, 1978 as held by the Hon'ble Supreme Court in HUDA Vs. Raj Singh Rana, Civil Appeal No.4436 of 2008, decided on 16.7.2008 as under:

"10. The concept of levying or allowing interest is available in almost all statutes involving financial deals and commercial transactions, but the provision empowering Courts to allow interest is 13 contained in the Interest Act, 1978, which succeeded and repealed the Interest Act, 1839. Section 3 of the said Act, inter alia, provides that in any proceeding for the recovery of any debt or damages or in any proceeding in which a claim for interest in respect of debt or damage already paid is made, the Court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the

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case may be, at a rate not exceeding the current rate of interest, for the whole or part of the periods indicated in the said Section."

16. Learned counsel mentioned that as per the definition of the current rate of interest as given in the Interest Act, 1978, it is the highest rate of interest payable in FDs and highest FD rate is about 7-8% p.a. and therefore, more interest cannot be granted even if a decision is taken to refund the amount alongwith interest. The learned counsel for OP-1 agreed that there has been a delay in the project. However, the matter has now been taken cognizance by the Real Estate Regulatory Authority, Haryana (RERA,Haryana). The RERA Haryana had convened a meeting on 7.9.2018 where MDs of OP-1 and OP-2 participated and it has been decided that OP-2 will complete the project in phases and the first phase will be completed by 31.3.2019 and the second phase will be completed by 31.12.2019 and 3^rdphase by 30.9.2020. The property in question is likely to be covered in phase-I and therefore, it is most likely that the flat will be completed by 31.3.2019 and company will be in a position by that time to give possession.

17. Coming to the force majeure conditions, learned counsel for OP-1 stated that vide order dated 31.7.2012, Hon'ble High Court of Punjab and Haryana in "Sunil Singh Vs. Ministry of Environment & Forests parayavaran" which was numbered as CWP-20032-2008 imposed a blanket ban on the use of ground water in the region of Gurgaon and adjoining areas for the purposes of construction. In the light of force majeure conditions, no compensation is payable according to clause 5.2 of the apartment buyer agreement. The delay has occurred due to conditions prevailing which were beyond the control of the OPs.

18. In respect of the compensation, it was argued by learned counsel for OP-1 that a consumer forum is authorized to order compensation as per Section 14(i)(d) of the Consumer Protection Act, 1986 and the compensation has to be based on the loss or injury suffered by complainant due to negligence of the OPs. In the present case, no loss has been suffered by the complainant as no proof has been filed by the complainant whether he has suffered any loss due to payment of any rent or any such other thing. In support of his arguments, learned counsel referred to the judgement of the Hon'ble Supreme Court in M/s. Fortune Infrastructure (Now known as M/s. Hicon Infrastructure( and another Vs. Trevor D"Lima and others, Civil Appeal No. 3533-3534 of 2017, decided on 12.3.2018, wherein the Apex Court has held as under:-

"11. It is now well established that the contractual damages are usually awarded to compensate an injured party to a breach of contract for the loss of his bargain. In the case of Johnson and Anr. V. Agnew, [1979] 1 All ER 883, the aforesaid case has clearly held as under-

The general principle for the assessment of damages is compensatory, i.e. that the innocent party is to be placed, so far as money can do so, in the same position as if the contract had been performed."

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19. Learned counsel for OP-1 further argued that the buyer was aware about the Development Agreement between OP-1 and OP-2 as clarified in clause 9.1 of the Apartment Buyer Agreement wherein it is clearly stated that the buyer has understood the terms and conditions of the Development Agreement as well. It was further argued by the learned counsel that the timely construction was subject to timely payment of all the buyers and it was OP-2 who had committed to complete the building in 36 months plus six months of grace period. The main responsibility of construction was of the developer i.e. OP-2. OP-1 is only the land owner and no liability for delay in construction can be fastened on OP-1. Learned counsel further argued that as per clause 5.5. of the Apartment Buyer Agreement, the company is liable to pay delay charges @ Rs.10/- per sq. ft. per month if the delay is more than 9 months and in the present case this will be applicable. As the parties are bound by the agreement and the company is ready to pay the delay charges as per the agreement, there should be no question of seeking more compensation by the complainant and the Commission would not be justified in ordering further compensation beyond the one agreed in the agreement between the parties.

20. Learned counsel for OP-2 stated that OP-1 is the owner of the project and entire amount paid by the complainant has been taken by OP-1. Learned counsel for OP-2 further stated that as per clause 4.7 of the Apartment Buyer Agreement, OP-1, M/s. Orris Infrastructure Pvt. Ltd. is responsible for refund and therefore no liability of OP-2 is there for refunding the amount as per the agreement and also due to the fact that no money has been paid to OP-2. It was further argued that complainant has not paid any amount to OP-2 and therefore, complainant is not a consumer qua OP-2 under the provisions of Consumer Protection Act, 1986. Therefore, the complaint against OP-2 is not maintainable. On the aspect of delay in construction, learned counsel for OP-2 pleaded the same argument as pleaded by learned counsel for OP-1.

21. I have carefully considered the arguments advanced by learned counsel for the parties and have examined the material on record.

22. Coming first to the question of pecuniary jurisdiction, it is seen that the total consideration of the flat is Rs.1,09,15,227/- and Rs.63,05,205.66 has been paid by the complainant. As per the judgement of National Commission passed in Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd., (supra), while deciding the pecuniary jurisdiction of a Forum, the total consideration of the flat alongwith compensation demanded is to be considered. The learned counsel for OP-1 has argued that interest will not be applicable for refund of the paid amount as there is no provision in the Apartment Buyer Agreement for such interest and in this regard the learned counsel has referred to the judgment of larger Bench of this Commission in Shahbad Cooperative Sugar Mills Vs. National Insurance Company Ltd. (supra) where this Commission has held that interest will not be added to the value of goods or services for deciding the pecuniary jurisdiction. This judgment is of the year 2003 whereas the larger Bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd(supra) has decided in the year 2016 that interest is also in the form of compensation and the same needs to be added to the value of goods or services for deciding the pecuniary jurisdiction of a Consumer Forum. As this Commission has revised its view in later judgement, the current decision of the larger Bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd(supra) shall prevail so far as adding of interest to the value of goods or services for consideration of the pecuniary jurisdiction is concerned. This Commission in the matter of Gaurav Aneja & anr. Vs. Supertech Limited, II

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(2018) CPJ 365 (NC) has taken a view that for deciding the pecuniary jurisdiction, the compensation in the form of interest @ 18% per annum should be considered. Learned counsel for OP-1 has given a calculation where the amount deposited alongwith interest of 18% per annum till the date of filing of complaint comes to Rs.92,59,592.66. However, the learned counsel for the complainant has calculated the same interest beyond one year of filing of the complaint which comes to Rs.1,04,29,508/-. The fact is that if the interest is calculated till the present date, the pecuniary jurisdiction of this Commission is clearly established even if no compensation is added to the value of service, though the complainant has demanded a compensation of Rs.15 lakhs separately for mental agony and harassment. If at this time, this complaint is dismissed on the ground of pecuniary jurisdiction and complainant is directed to go before the State Commission, the State Commission would not be having the pecuniary jurisdiction to decide the present case and they will also return the complaint to be filed before the appropriate forum and then the appropriate forum would be this Commission. Accordingly, in my view, this complaint needs to be decided by this Commission.

23. So far as Sections 54 and 55 of The Indian Contract Act, 1872 are concerned, learned counsel for the OP-1 has relied upon the judgment of this Commission in DLF Southern Town Pvt. Ltd. vs. Dipu C. Seminlal (supra), whereas the learned counsel for the complainant has relied upon the decision of this Commission in Rakesh Mehta Vs. Emaar MGF Land Limited (supra). In the case of DLF Southern Town Pvt. Ltd. vs. Dipu C. Seminlal (supra) the complainant has deposited only the booking amount and no instalments were paid whereas in the present case instalments have been paid upto the 7^thstage and the payment was stopped later on as there was no progress in the construction. Thus, two cases cannot be compared and therefore, it cannot be said that the complainant breached the agreement and he is not entitled to any relief in the light of Section 54 and 55 of The Indian Contract Act, 1872.

24. Clearly the OPs have not been able to complete the project in time and deliver the possession of property in question to the complainant in time as per the allotment letter or the Apartment Buyer Agreement. It is now clearly established that the allottees have right to ask for refund if the possession is inordinately delayed and particularly beyond one year. In the present case, the project is not yet complete though the possession was to be given in February, 2016. The OP-1 has taken the defence of force majeure conditions for delay whereas the fact is that the learned counsel for OP-1 has mentioned about the order of the Hon'ble High Court of Punjab and Haryana in "Sunil Singh Vs. Ministry of Environment & Forests Parayavaran (supra) wherein the use of ground water was restricted and OPs had to bring water from outside. Clearly, there was no ban on construction and OP-1 company should have put its resources and managerial skills to bring water from outside and to complete the construction in time. On the one hand, learned counsel for OP-1 has pleaded force majeure conditions for delay and on the other hand, OP-1 has pleaded that OP-2 is responsible for delay in construction. Clearly it was a joint project of OP-1 and OP-2 as both of them have signed the Apartment Buyer Agreement, therefore, both are responsible for delay. However, as OP-2 has not received any amount of money from the complainant and complainant is only seeking refund, clearly the joint liability of OP-2 cannot be considered in the present case.

25. As OP-1 has received all the amount paid by the complainant, OP-1 would be liable to refund the same to the complainant. Learned counsel for OP-1 has argued that interest can only be ordered as per the Interest Act, 1978. The current interest rate as per the Interest Act, 1978 is 10% p.a.

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26. So far as the question of forfeiture of earnest money is concerned, it is seen that the complainant has to seek refund as the project has been inordinately delayed. Even though the RERA, Haryana has taken a meeting to expedite the project and OP-2 has agreed to complete the project in phases, it is seen in the same proceedings that the following has also been observed:

"7. The license holder and developer have entered into an agreement without permission of the government/DTCP Haryana which may attract action against the license holder as well as against the developer which finally in turn will affect the interest of the allottees. BIP permission is necessarily and legally required to regularize the already entered agreement by the developer and license holder. License holder shall apply for BIP in favour of 3C Shelters Pvt. Ltd. with DTCP Haryana, preferably within a month. The fee for BIP shall be paid to the government for which the drafts shall be made by the developer 3C Shelters Pvt. Ltd. preferably within a month and thereafter within three days of getting the draft the licensee shall apply for the BIP and pursue with the Government for issuance of the same well in time."

27. From the above, it is clear that OP-1 and OP-2 have not entered into the agreement as per provisions of law and accordingly, the Development Agreement itself becomes questionable and without any basis. Though this ground has not been taken by the complainant for seeking refund, however this is also a valid ground for the complainant for seeking refund. If there is uncertainty in the development agreement itself, as entered between OP-1 and OP-2, some allottees may not want to block their money in such a project. Similarly in para -4 of the same proceedings it is mentioned that the OPs have not paid EDC and IDC to the Government and it seems that the OPs were not serious in timely completing the project.

28. Based on the above examination, it is clear that the project has been delayed by more than 2 years and complainant has right to seek refund in the circumstances when even the EDC and IDC have not been paid to the competent authority by the OPs and even the Development Agreement is not as per the provisions of law. In such circumstances, there should be no question of forfeiting any earnest money as the sole responsibility for delaying the project is of OP-1 and OP-2. Complainant is seeking refund under compelling circumstances. Accordingly, the complaint is allowed and following order is passed:

ORDER

29. "The OP-1 shall refund the amount of Rs.63,05,205.66 alongwith interest @ 10% p.a. from the date of respective deposits till actual payment to the complainant. This order be complied with within a period of 45 days from the date of receipt of this order."

30. Parties to bear their own cost.

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PREM NARAIN

PRESIDING MEMBER

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