square yards, purchased by him, for his personal use, in a Mega Housing Project, known as 'Palm Garden', Mullanpur, Punjab, total price whereof was fixed at Rs.46,25,000/-. It is the case of the complainant that despite the fact that substantial amount of Rs.23,12,500/-, had been paid to the opposite party, by 15.03.2014, (which fact is not disputed by the opposite party), yet, it failed to issue allotment letter and also send buyer's agreement for his signatures, in respect of the plot in question. Except issuance of registration no.PG/2412, no further steps in the matter, were taken by the opposite party. Number of visits were made to the office of the opposite party, by the complainant, requesting it, either to deliver possession of the plot or in the alternative, to refund the amount paid, but to no avail. Legal notice dated 20.07.2018 Annexure C-10, served upon the opposite party, in the matter, also did not yield any result.

By stating that the aforesaid act and conduct of the opposite party amounted to deficiency in providing service and adoption of unfair trade practice, the present complaint has been filed, with a prayer to issue directions to it (opposite party) to refund the amount paid, with interest, compensation etc.

2. Upon notice of this complaint, the opposite party put in appearance through its Counsel Sh.I.P. Singh, Advocate and filed its written version, wherein, numerous objections were taken like, expression of interest shown by the complainant was for speculative purposes. He and his family members are in habit of booking plot(s) and then resell the same. The plot, in question, was purchased for future gain, as such, the complainant being investor, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 (in short, the Act). It was pleaded that complicated questions of facts and law are involved in this complaint, as such, the same cannot be entertained by this Commission, proceedings before which are summary in nature. Only Civil Court has jurisdiction to entertain and decide this complaint. Territorial jurisdiction of this Commission was also challenged. It was stated that the project of the opposite party has been registered under the Real Estate (Regulation and Development) Act, 2016 (in short, the RERA). Jurisdiction of this Commission was further challenged, by stating that RERA being a special statute took precedence over the Act, 1986. It was so said by Counsel for the opposite party, at the time of arguments.

3. On merits, it was admitted that the plot, in question, was sold to the complainant, in a project of the opposite party known as "Palm Garden" aforesaid. Payment received against the said plot, to the tune of Rs.23,12,500/- was also not disputed. To say that there was lot of development in the project, some photographs were placed on record. It was stated that the project was approved on 22.03.2013. Formal agreement was signed with the Government on 14.06.2013. Thereafter, some more land was added to the project, for which completion period was given upto 13.06.2018. It was stated that exemption from the applicability of provisions of the PAPRA already stood granted by the Government concerned, in favour of the opposite party on 25.01.2017. In view of above, act of the opposite party in getting money deposited against expression of interest, from the purchasers stood rectified. The exemption granted will relate back to the date, when application was moved for sanction, to launch the project, in the year 2011 i.e. it is retrospective in nature. It was averred that once the State Government has not held that the opposite party had violated the provisions of PAPRA, as such, this Commission cannot go into the said question. It was stated that as per Section 35 of the PAPRA, jurisdiction of Civil Court is barred to entertain and decide any question relating to matters arising under it (PAPRA). The complainant has waived of his rights to raise any objection regarding permissions/approvals aforesaid, by making payment towards price of the said plot. It was further averred that now the opposite party is in possession of all the requisite permissions/clearances, in respect of the said project. Irregularities, if any, in accepting the expression of interest to purchase the land; non-execution of Buyer's Agreement, as per Section 6 of the PAPRA etc. have no adverse effect on the project of the opposite party or on the complainant. It was averred that the complainant was requested number of times, to come forward for selection of plot; execution of the buyer's agreement; and pay the remaining amount but he failed to do so. He is defaulter in making payment of the remaining amount. Now the complaint seeking refund of the amount paid, is barred by time. It was further stated that claim of the complainant seeking interest @24% p.a. is totally unjustified. Even for fixed deposits, in the banks, rate of interest is very less. It was also stated that huge amount has been invested by the opposite party for getting necessary clearances and in developing the site in dispute.

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The opposite party is trying to complete the project, as early as possible, as the development work is going on, in full swing and provision of basic amenities such as roads, electricity etc. are near completion. Possession of the plot can be delivered to the complainant shortly. It was further stated that the complaint is barred by limitation. However, in the same breath, it was pleaded that, as per Supplementary Agreement dated 16.06.2016, the Govt. concerned has given completion period of the project upto 13.06.2018 (which period already stood expired). Furthermore, on request made by the opposite party, the Competent Authority has extended completion period of the project, upto 31.07.2019. As such, the said date has to be assumed as the date of delivery of possession of plot to the complainant. It was averred that time was not the essence of contract. Furthermore, the project was delayed also on account of red-tapism in the offices of the Govt. Department concerned and also business/political rivalry. The complainant was informed that possession of the plot will be delivered within a period of 5 years, from the date of obtaining necessary approvals/sanctions from the Competent Authorities. However, the Competent Authorities delayed in granting approvals/sanctions, as far as the present project is concerned. It was stated that delay in delivery of possession of plots occurred also on account of shortage of building material and ban on mining by the Govt., which could be termed as force majeure circumstances. It was also stated that huge amount has been invested by the opposite party for getting necessary clearances and in developing the site in dispute. It was pleaded that the complainant is open to come forward for execution of buyer's agreement, after making payment of balance amount towards price of the said plot. It was averred that the complaint is bad for non-joinder of M/s Manohar Infrastructure and Construction Private Limited, as necessary party. Saying that neither there is any deficiency in rendering service nor adoption of unfair trade practice, on the part of the opposite party, it was prayed that this complaint having no substance deserves dismissal with cost.

4. The contesting parties led evidence, in support of their cases.

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

6. The first question that falls for consideration, is, as to whether, this Commission has got territorial jurisdiction to entertain and decide this 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 him. In the instant case, perusal of almost all the documents placed on record, pertaining to transaction carried out between the parties, reveals that the same have been issued and received from/by Chandigarh Office of the opposite party i.e. Manohar Infrastructure and Constructions Pvt. Ltd., SCO No.139-141, Sector 17-C, Chandigarh. Even the documents placed on record, which were issued by Controlling Authority of the opposite party, with regard to approvals qua the project, in question, are also addressed to its Chandigarh Office, meaning thereby that the opposite party was carrying out its business at the said office for gains. In view of above, it can safely be said that this Commission has got territorial Jurisdiction to entertain and decide this complaint. Objection taken by the opposite party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

7. There is no dispute that a plot was sold by the opposite party, to the complainant, in the project aforesaid, against sale consideration of Rs.46,25,000/-. It is also not disputed, that an amount of Rs.23,12,500/-, has been received by the opposite party from the complainant, towards price of the said plot, as far as back by 15.03.2014. The payment made was about 50% of the total sale consideration, for a plot measuring 250 square yards, in the project named 'Palm Garden', Mullanpur, Punjab. Thereafter, it is an admitted fact that instead of allotment of plot and also execution of buyer's agreement, the opposite party started making demand of further payments, which was not paid by the complainant, on account of the reasons, mentioned above. There is nothing on record to show that by the time when the project was launched and sold, before grant of exemption from the provisions of applicability of PAPRA on 25.01.2017, any permission was available with the opposite party. This fact has been honestly admitted by the opposite party, in its written reply. At the time of arguments, it has also come to our notice that when the project was advertised and sold in the year 2011/2012, the opposite party was not even registered with the GMADA, SAS Nagar, as a qualified project

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proponent, to obtain license under Section 5 of the PAPRA. Certificate of Registration was granted by the GMADA only on 27.06.2014, permitting the opposite party to setup a colony subject to its obtaining requisite licenses, as mandated under the provisions of PAPRA. The question, as to whether, necessary permissions/sanctions had been obtained by the opposite party before launching this project, came up for consideration before this Commission, recently in Veena Ghai and anr. Vs. M/s Manohar Infrastructure & Constructions Pvt. Limited and anr., consumer complaint no. 659 of 2017 decided on 28.06.2018. This Commission held as under: -

"The fact that the project was launched without obtaining necessary permissions/sanctions having been obtained from the Competent Authorities, is further fortified from a document of the opposite parties, placed on record as Annexure O-12 (at page 89 of the file), showing in a tabular format, as to by which dates, approvals, NOCs were granted to them, by the Competent Authorities. Relevant part of the said table is reproduced hereunder:-

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Perusal of the aforextracted table clearly reveals that not even a single permission

was available with the opposite parties, when the project, in question, was launched

and sold to the customers, including the complainants, in March 2011. As such, the

project, in question, was launched in complete derogation of the above said

provisions.

Collecting money from the perspective buyers without obtaining the

required permissions and sanctions is an unfair trade practice on the part of the

project proponent. It is well settled law that it is duty of the builder to first obtain the

requisite permissions and sanctions and only thereafter collect the consideration

money from the purchasers. It was also so said by the National Commission, in a case

titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First

Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order

reads thus:-

"…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………"

However, in the present case, the opposite party did not place on record all the documents, referred to, in the table aforesaid. As such, an adverse inference can easily be drawn that had all the said documents been placed on record, the same would have gone against the interest of the opposite party, as it would have been evident therefrom that when huge amount of Rs.13,87,500/- was received from the complainant in March 2012, it was not even owner of the land, whereupon the project was to be developed. This act amounts to grave unfair trade practice on the part of the opposite party.

8. Furthermore, amount accepted at the time of booking was more than 25% i.e. Rs.13,87,500/- against Rs.46,25,000/-. Thereafter also, more amount was received by the opposite party and by 15.03.2014, total amount of Rs.23,12,500/- stood paid by the complainant. No Agreement was got signed, as is mandatory under the above said provisions. As such, there is a complete violation of the provisions of the PAPRA. It is an admitted case of the opposite party that permission seeking exemption from the applicability of provisions of PAPRA has finally been granted only in the year 2017, which cannot be said to have any retrospective effect but on the other hand, will have prospective effect only. As such, it could very well be said that by selling the units without authority,

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the opposite party violated the provisions of PAPRA, and the said violation amounts to adoption of an unfair trade practice, which is glaring and vivid on its part.

Similar controversy came up for consideration before this Commission, qua this project owned by the opposite party, in the case of Shaminder Walia and another Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, Consumer Complaint no.918 of 2016, decided on 08.05.2017 (alongwith six connected cases). Noting similar contentions, this Commission observed as under: -

"To get a plot allotted in the project named as 'Palm Garden', first payment was received by the opposite party on 11.01.2012. It is virtually admitted on record that when the project was sold, not even a single permission was available with the opposite party. It is admitted in the written version that part of the project of the opposite party was approved much later, in the year March 2013. Formal Agreement was signed with the Govt. of Punjab on 14.06.2013. Thereafter, additional area was added and supplementary agreement was signed on 16.06.2016. Notification granting exemption from the applicability of the provisions of PAPRA was issued only on 25.01.2017. Perusal of the said notification makes it very clear that exemption given was conditional, as has been referred in para no.5 of the said notification. Besides other conditions, condition no.5 (iii to vii), reads thus:-

"(iii). The promoter shall deposit the entire amount in respect of the contribution to the Punjab Urban Development Fund, created under section 32 of the Punjab Apartment and Property Regulations Act, 1995 (Act No.14 of 1995), within a period of 30 days of the sanctioning of their layout plan.

(iv). The promoter shall acquire the ownership of project land in its name including land under agreement to develop and land under agreement to sell. The plots falling under land proposed to be acquired if any through Govt. acquisition, plot through which revenue rasta or khali passes shall not be developed and sold till these pockets are acquired and ownership is transferred in the name of the Promoter.

(v) The plots/land to which the access is proposed through the land to be acquired if any by the Government shall not be developed and sold till that land under the access is acquired and transferred in the name of the promoter and access is provided.

(vi) The promoter shall be responsible for obtaining the final NOC from Punjab Pollution Control Board.

(vii) Before starting the development of the proposed project promoter shall obtain environmental clearance from the Ministry of Environment and Forest Government of India as required under EIA notification dated 14.9.2006 as well as consent to establish (NOC) from the Punjab Pollution Control Board."

It is specifically mentioned that before starting development of the proposed project, promoter was to obtain environmental clearance from the Ministry of Environment and Forest Government of India, in terms of EIA notification dated 14.09.2006. There is nothing on record that such clearance was obtained by the opposite party. Further, it was also mentioned that requisite amount be paid towards Punjab Urban Development fund, within a period of 30 days, from the date of sanctioning of layout plans. No evidence has been placed on record, showing payment of the aforesaid amount. Furthermore, it is mandated that the promoter shall also be responsible for getting 'No Objection Certificate' from Punjab Pollution Control Board. No document exists on record, showing that such approval was obtained by the opposite party.".

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9. At the time of arguments, Sh.I.P. Singh, Advocate, argued with vehemence that issuance of notification dated 25.01.2017 granting exemption from the applicability of many provisions of PAPRA qua mega project, in question, will relate back to 12.09.2011, the date, on which application was filed to get licence, under the mega housing policy. In a way, it was said that when the above notification was issued, it ratifies all the mistakes/irregularities committed by the opposite party, qua sale of plots in the years 2011/2012, without obtaining necessary sanctions and approvals from the Competent Authorities. To so say, reliance has been placed upon the ratio of judgment in the case of M/s Murudeshwara Ceramics Ltd. Vs. State of Karnataka, 2002 (1) SCC Page 116. On perusal of the entire record and documents, we are not going to accept the said arguments. In the case of Shaminder Walia (supra), similar contention was raised and the same was rejected by this Commission, by observing as under:-

"It was contended by Counsel for the opposite party that after issuance of notification dated 25.01.2017 exempting applicability of many provisions of PAPRA qua mega project, the irregularities adopted by it qua sale of plots in the year 2012, etc. stands rectified. In para no.16 of its reply, it was specifically stated by the opposite party that irregularity in accepting expression of interest for sale of the plot in the said project, will have no adverse effect. We are not going to agree with the contention raised. There is nothing on record that the said notification is retrospective in nature. As stated above, when the project was sold, not even a single permission was available with the opposite party. The sale was made in contravention of the provisions of PAPRA and upon issuance of notification in the month of January 2017, violation committed or admitted irregularities made, cannot be rectified. Similar question qua this very project, came up for consideration before this Commission in Sukhvinder Singh Hayer Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, Complaint case no.775 of 2016 decided on 23.03.2017 (02 connected cases), wherein it was observed as under:-

"It is specifically mentioned that before starting development of the proposed project, promoter was to obtain environmental clearance from the Ministry of Environment and Forest Government of India, in terms of EIA notification dated 14.09.2006. There is nothing on record that such clearance was obtained by the opposite party. Further, it was also mentioned that requisite amount be paid towards Punjab Urban Development fund, within a period of 30 days, from the date of sanctioning of layout plans. No evidence has been placed on record, showing payment of the aforesaid amount. Furthermore, it is mandated that the promoter shall also be responsible for getting No Objection Certificate from Punjab Pollution Control Board. No document exists on record, showing that such approval was obtained by the opposite party. Contention of Counsel for the opposite party that notification dated 25.01.2017 exempting applicability of many provisions of PAPRA qua mega project, the sale of plots in the year 2011 etc. stands rectified. We are not going to agree with the contention raised. There is nothing on record that the said notification is retrospective in nature. When project was sold, not even a single permission was available with the opposite party. The sale was made in contravention of the provisions of PAPRA and upon issuance of notification in the month of January 2017, violation committed cannot be rectified. Similar question qua this very project, came up for consideration before this Commission in Monika Vs. M/s Manohar Infrastructure and Construction Pvt. Limited, Complaint case no.251 of 2016 decided on 27.09.2016, wherein it was observed as under:-

"The pleadings of the parties indicate that when project was marketed and sold, not even a single permission was available with the project proponent/opposite party. There is a complete violation of the provisions of the PAPRA. It is an admitted case of the opposite party that application seeking exemption from the applicability of provisions of PAPRA is still pending under consideration, with the Authorities concerned. Unless exemption is granted, its violation would amount to adoption

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of an unfair trade practice, which is glaring and vivid on the part of the opposite party, in this complaint.

Qua a similar project launched by the opposite party in the same area, in Appeal No.248 of 2016, decided on 31.08.2016, titled as M/s Manohar Infrastructure and Constructions Pvt. Limited Vs. Sh.Tilak Raj Bakshi, under similar circumstances, this Commission, while dismissing the said appeal, has observed as under:-

"The documents placed on record clearly show that the project was launched without getting any permission from the Competent Authorities. Detailed brochure was issued showing facilities to be made available in the project launched and its layout plan. It is also on record that when it came to the notice of GMADA that the plots/flats are being sold unauthorizedly by the appellant, it gave a notice in the newspaper 'Hindustan Times' dated 18.08.2012, which reads thus:-

"PUBLIC NOTICE

This is for the information of one and all that it has come to the notice of the Competent Authority that one company named as M/s Manohar Singh & Co. is allegedly booking/selling plots in the Mullanpur- Siswan region near Chandigarh border in the State of Punjab. This is being intimated that the above said project is not approved by the State Government. The Competent Authority is initiating legal proceedings in this regard.

If anybody has booked or purchased any plot in the locality mentioned above he/she is advised to contact the undersigned along with documentary proof for further legal action against the said promoter. Further, while buying any plot in any locality falling under the jurisdiction of GMADA, all are advised to visit the website www.gmada.gov.in to verify if the colony/project is approved or not.

Chief Administrator GREATER MOHALI AREA DEVELOPMENT AUTHORITY, PUDA Bhawan, Sector 62, SAS Nagar".

It is specifically stated in the notice dated 18.08.2012 that the appellant was allegedly booking/selling the plots in Mullanpur, near Chandigarh Border, in the State of Punjab, unauthorizedly. It was further stated that the project is not approved by the Competent Authority and it (Competent Authority) is initiating legal proceedings against the project proponent for its activity. Above said notice makes it very clear that when the plot was sold on 13.04.2012, the project was not approved by the Competent Authorities. It is also so reflected in the details given by the appellant with this appeal, which is available at page 33 of the paper book. Reading of above said document, makes it very clear that the project was approved by the Government on 25.04.2013; Letter of Intent (LOI) was issued on 03.05.2013; Change of Land Use (CLU) certificate was granted on 31.03.2014; project was registered on 21.06.2014; No Objection Certificate by the District Forest Officer, SAS Nagar, Mohali, was issued on 14.07.2014; Zoning plan was approved by the Chief Town Planner, Punjab on 24.11.2015 and Detailed Project Report (DPR)/Service Plans were approved by the Chief Engineer, GMADA, Mohali, on 27.11.2015. As per established law, if the project proponent sells the project without obtaining necessary permissions or clear title of the acquired land, it would amount to adopting unfair trade practice. It was so said by the Hon'ble National Commission in Atul Maheshwari and ors. Vs. Yamuna Expressway Industrial Development Authority, II (2016) CPJ 623 (NC). Relevant portion of the said judgment reads thus:-

"OP should not have announced the scheme, until or unless they got clear title of the acquired land".

Similar view was expressed by the National Commission in Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.756 of 2016, decided on

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30.03.2016. In that case, when upholding the findings given by this Commission, that the project cannot be even marketed before getting approvals/sanctions, from the Competent Authorities, to launch it, it was observed by the National Commission, as under:-

"We are unable to persuade ourselves to agree with the ld. 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 26.08.2014, referred to above, clearly states that not even a single application qua granting 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. 3807 acres, bearing hadbast No.326, Khewat No.92, Khatauni no.254-352, at Village Mirzapur, District Mohali, Punjab. There is nothing on record that said land was ever partitioned.

6. We are in complete agreement with the view taken by the State Commission. As noted above, the petitioners happen to be body corporate. Before offering the farmhouses in the said project as Agent of Respondent No. 2, they must be aware about the status of the sanction for launch of the project. Therefore, it is beyond one's comprehension that the present Petitioner was not aware about the actual state of affairs for which only the developer could be held responsible." In the present case also, there is nothing on record that when expression of interest/applications were invited to sell the said project, clear intimation was given to the intending purchasers that the project sold was in infancy stage and it will take years together before necessary permissions will be provided by the Competent Authorities."

10. In the present case also, as stated above, there is nothing on record to show that when the project, in question, was launched and sold, any permission was available with the opposite party. It is also not proved on record that the said fact of selling the project without permissions/approvals was brought to the notice of the intending purchasers. The purchasers were not informed that it will take years for obtaining necessary sanctions and approvals, after sale of the said project. In the present case, there is nothing on record to show that when notification dated 25.01.2017 granting exemption to the opposite party from the applicability of some provisions of the PAPRA was issued, violations committed were brought to the notice of the Competent Authorities/Govt. The mega housing policy and the provisions of PAPRA debars any builder to advertise and sell the project before getting necessary sanctions. Merely because in some newspaper, a notice had appeared on behalf of the GMADA intimating the general public that Manohar Singh and Company is selling the project unauthorizedly, would not amount to intimation to the Competent Authorities i.e. the Govt. of Punjab, that the opposite party has committed many mistakes, while selling the project, in question. Had those mistakes been brought to the notice of the Competent Authorities, at the relevant time, the license to launch the said project, was bound to be rejected, being in violation of provisions of the PAPRA; Special Package of Incentives under Industrial Policy 2009 and mega housing policy. Any ratification is possible, in case, the mistake committed is brought to the notice of the Competent Authorities. Thereafter, only the Competent Authorities by passing a conscious order can ratify the said mistake. In the present case,

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merely issuance of notification aforesaid, by the Competent Authorities, on 25.01.2017, would not ratify the mistakes committed in law by the opposite party.

11. Such a contention also came up for consideration, before this Commission in Shaminder Walia's case (supra) and it was rejected by observing as under:-

"It was vehemently contended by Counsel for the opposite party that once exemption from the applicability of the provisions of PAPRA stood granted in the year January 2017, it will relate back to the date of launching of the project, and all irregularities stands rectified. To support above said contention, he has placed reliance on the ratio of judgment passed by the Hon'ble Supreme Court of India, titled as M/s Murudeshwara Ceramics Ltd. Vs. State of Karnataka, 2002 (1) R.C.R. (Civil)

130.

We are not going to accept the arguments raised. It has already been held in Sukhvinder Singh Hayer` case (supra) that upon issuance of notification in the month of January 2017, granting exemption from the applicability of the provisions of PAPRA, violation committed prior thereto, cannot be rectified. To so say, in Sukhvinder Singh Hayer` case (supra), reliance was also placed upon the judgment passed by this Commission in Monika`s case (supra). The said finding was given in consonance with the findings of the National Commission in Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another`s case (supra).

As far as the reliance placed by Counsel for the opposite party on M/s Murudeshwara Ceramics` case (supra) is concerned, we have gone through the facts of the same very carefully and found that the same were altogether different from the facts of the present case. In the case before the Hon'ble Supreme Court of India, when interpreting the provisions of Section 109 of the Karnataka Land Reforms Act, 1961, it was stated that power of the Government to grant exemption with regard to the land, in any area from operation of some of the provisions of the Act, for using the said land for a particular purpose, are to be seen, not at the time of sale/purchase of the land in dispute, but at the time, when it was going to be put for the said use. It was noted that after sale of the land, in dispute, when it was going to be put for industrial use, exemption already stood granted. The position is altogether different; as in the present case, by indulging into selling the project without any sanctions in its hands, the opposite party has committed unfair trade practice, as defined in Section 2 (1) (c) (i) and (iii) of the CP Act.

It is apparent on record that in the year 2012, activities of the opposite party in selling the project, without any sanction were noticed by the Competent Authorities and on 18.08.2012, as a result whereof, notice was published in a newspaper, stating that such sale was illegal. Copy of newspaper dated 18.08.2012, in which the said public notice was issued by the GMADA, is placed on record as Annexure C-10, in consumer complaint bearing no.890 of 2016, titled as Sheela Devi and another Vs. Manohar Infrastructure and Constructions Private Limited.".

12. In the case of Shaminder Walia (supra), it was vehemently contended that M/s Manohar Singh and Co. and the opposite party namely M/s Manohar Infrastructure and Constructions Pvt. Ltd., are two different identities and notice issued in the said newspaper qua M/s Manohar Singh and Co. will not have any effect, so far, the project of the opposite party is concerned. The said contention was rejected by this Commission, by placing reliance upon various documents and the photographs. In the present case, it was fairly admitted by Sh.I.P. Singh, Advocate, that the opposite party is part and parcel of M/s Manohar Singh and Co. Above fact clearly demonstrates that the GMADA, when came to know about unauthorized sale of a project, issued a notice asking general public not to purchase any property from the opposite party and also contemplated a legal action. However, it appears that no such legal action was taken against the opposite party. It may be on account of connivance of the opposite party with Offices of the said Authority.

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13. Further contention of Counsel for the complainant is that amount was received without offering Buyer's Agreement for signing, within a reasonable period say two or three months. This fact is not seriously disputed. It is only said that the complainant may come forward for execution of the same. As per the provisions of Section 6 of the PAPRA, it is incumbent upon the project proponent to execute Buyer's Agreement on accepting application for purchase of unit etc., within a reasonable time say about two to three months. By not offering Buyer's Agreement, for signing within reasonable time, the opposite party committed unfair trade practice and also was deficient in providing service. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. 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 16.02.2011. She was allotted unit, vide letter dated 23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer's Agreement was not put for signing in a reasonable time, say two to three months. She continued to make payment and when Buyer's Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer's 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". At the same time, it is also held that merely taking a bald plea, in the absence of any documentary evidence, saying that the complainant was asked, number of times, to come forward for execution of buyer's agreement, is of no help to the opposite party. Not even a single document has been placed on record, in this case, by the opposite party, asking the complainant, to come for signatures of Buyer's Agreement or for taking possession of the plot. However, as far as letters dated 15.05.2014 and 27.06.2014 Annexures O-1 and O-2 are concerned, it may be stated here that vide the said letters, the opposite party demanded further amount from the complainant. In those letters, there is no mention about execution of buyer's agreement or possession of the plot. As such, no help therefore can be drawn by the opposite party from the letters, referred to above. As such, in the present case, by not offering Buyer's Agreement, for signing in a reasonable time, or even till date, the opposite party committed unfair trade practice and are also deficient in providing service.

14. At time of arguments, it was also vehemently contended by Sh.I.P. Singh, Advocate for the opposite party that application to get mega project approved, was filed in the year 2011. Delay occurred on account of laxity on the part of the bureaucrats/Competent Authorities in granting permissions/ approvals and further it was deliberately delayed, because of rivalry existing between the political party in power and the Managing Director/Directors of the Company. Such a plea has been taken just to raise it without any material on record. It may be stated here that if the application to get necessary permissions, was moved in the year 2011 before the Competent Authorities, what happened thereafter; whether any objection was raised; whether at any point of time, it was taken up with the Authorities concerned, to give permission(s), within three months, as per Rules or not, has not been made clear. There is nothing on record that when the Competent Authorities allegedly did not grant permissions/approvals and delayed the matter, any reminders were sent to him, to do the needful. Not even a single document has been placed on record that the Competent Authorities delayed the matter deliberately, despite the fact that necessary steps were taken at the end of the opposite party, for obtaining requisite permissions, for launching and selling the said project. At the same time, there is nothing on record, whether any Officer(s) of the Management of this Company was/were the member(s) of any political party; they ever contested any election; and whether question of rivalry causing delay on account of political reasons was ever taken up before the Competent Fora/Court of Law. It is on record that to get necessary permission qua the land in the project, applications were moved in parts. The opposite party continued to purchase land and continued moving the applications, to the Authorities. In this view of the matter, the plea taken by the opposite party, stands rejected.

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15. A plea was also taken by the opposite party, in its written version, to the effect that delay in delivery of possession of the plot was caused on account of ban on mining, as such, building material such as sand etc., remained short to an extent, meaning thereby that it had encountered force majeure circumstances.

It may be stated here that as regards the alleged shortage of construction material like sand etc. in the market, nothing has been placed on record, by the opposite party, to prove that it was unable to procure the said construction material, in adequate quantity. There is no evidence of the opposite party having invited tenders for supply of construction material and there being no response to such tenders. A similar plea for delay in delivery of possession of the units, was taken by a builder, before the Hon`ble National Consumer Disputes Redressal Commission, New Delhi, in Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints), decided on 14 Aug 2015, which was rejected and the complaint was allowed in favour of the complainant. The principle of law, laid down, in the aforesaid case is fully applicable to be present case. In the present case also, the opposite party failed to convince this Commission, that it actually encountered force majeure circumstances, as a result whereof, delay in handing over possession of the unit occurred. As such, the stand taken by the opposite party, in this regard, is rejected.

16. Further contention was raised by Counsel for the opposite party that the complainant is an investor. Plot was booked for speculative purposes, as such, he would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 (in short, the Act,

1986).

We are not going to accept this contention. In the present case, a specific plea has been taken by the complainant that he has purchased the said plot for his personal use. At the same time, there is nothing on the record that the complainant is a property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the plot, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. He waited for around six years and has then filed this consumer complaint. At the same time, if other family members of the complainant have alleged purchased some property in their individual capacity, that will not debar him from purchasing a plot, in his own name. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. Since the opposite party has levelled allegations against the complainant, the onus lay upon it, to place on record, documentary evidence in that regard, which it failed to do so. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, 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 Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only as above, recently under similar circumstances, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

" In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission

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in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015."

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 Act. Such an objection, taken by the opposite party, therefore, being devoid of merit, is rejected.

17. The next question that falls for consideration, is as to whether, the complainant is entitled to refund of the amount paid or not. It may be stated here that the plot, in question, was booked by the complainant, as far as back in March 2012 on making payment of booking amount of Rs.13,87,500/-. Thereafter, more amount was paid by him and by March 2014 total amount Rs.23,12,500/-, stood paid to the opposite party. Whereas, on the other hand, it is an admitted fact that even as on today, the project is not developed. The opposite party while relying on some photographs is still saying that development at the project site is going on and near completion. However, photographs placed on record by the opposite party, reveal that still it will take a long time for completing the development work. It can easily be revealed from the said photographs that still lot of development work is pending to be done as far as the roads etc. are concerned. Sanitary/sewerage pipes and electric wires are found lying in open ground. It can be adjudged from the photographs, that entrance of the project has been beautified, to allure the innocent customers. Photographs itself prove the position of the project, as in 2018. At the same time, it is very significant to mention here that the plot was booked in the year 2012 and now it is 2019. Still the opposite party is saying that the complainant can come forward for execution of the Agreement meaning thereby that he will have to wait for more years, to get his plot because after that the opposite party will say that he cannot file a complaint before the expiry of period of handing over the plot, as mentioned therein (Agreement), it being premature. Under these circumstances, it can be said that there is a material violation in providing service, on the part of the opposite party. The complainant cannot be made to wait for an indefinite period, for delivery of possession of the plot purchased by him. The opposite party, therefore, had no right to retain the hard- earned money of the complainant, deposited towards price of the plot. It is a settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the Hon'ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, 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 parties no.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 Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble 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.

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Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon'ble 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".

The above view taken by the National Commission, has been reiterated by it, recently in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No. 1814 of 2017 decided on 05.07.2018. Relevant part of the said order reads thus: -

"This Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment".

However, in the present case, as stated above, possession of the unit has not even been offered, what to speak of delay in offering thereof. The complainant, is, thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the opposite party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.

18. Further contention was raised by Counsel for the opposite party that in the face of supplementary agreement dated 16.06.2016, whereby the Govt. of Punjab, has granted permission to complete the project by 13.06.2018, and thereafter, further extension has been granted to it, by RERA to complete the project till 31.07.2019, as such, the complainant was to be handed over possession of the plot, on or before that date.

First coming to the Supplementary Agreement dated 16.06.2016, it may be stated here that we have gone through the contents thereof, and are of the considered opinion that it is of no help to the opposite party, as far delay in delivery of possession of the plot, in question, to the complainant is concerned. The said Agreement was signed between the opposite party and the Govt. of Punjab, only in relation to permission sought by it (opposite party), vide letter dated 25.08.2015 (after about more than three and a half years of booking of the present plot), for addition of 94.60 acres of more land in the project area. It was on account of this reason, that supplementary agreement was executed.

At the same time, if this plea taken by the opposite party that since supplementary agreement was executed on 16.06.2016 between it and the Govt. of Punjab and as such, now it was liable to hand over possession of the plot to the complainant latest by 13.06.2018, is considered in favour of the opposite party, then it would amount to admittance on its part that till 16.06.2016, it was not in possession of the land even, but on the other hand, it had booked a plot and received about 30% of the price of the plot, as far as back in 2012 and thereafter further amount in March 2014, as referred to above. Furthermore, it is not clarified by the opposite party that if the land for plot was ultimately got in its hands, by way of supplementary agreement dated 16.06.2016, then for which land, it was talking about in the application acknowledgment receipt dated 01.04.2012 Annexure C-3 issued in favour of the complainant, saying that all layout plans, specification and other details are tentative. If this is so, it amounts to grave unfair trade practice on the part of the opposite party, as it had received an amount of Rs.13,87,500/- against a plot by March 2012, but on the other hand, till 15.06.2016, it has not even acquired land for the same (plot).

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Now coming to the letter dated 13.07.2018, Annexure O-4, we have gone through the same and found that extension has been granted to the opposite partyby RERA only with regard to registration of the project. This letter cannot be made a basis to say that the opposite party was given any immunity out of the deficiencies and unfair trade practice, adopted by it, in respect of the plot, in dispute. Even otherwise, the said extension of registration has been given in respect of the project namely "The Palm (Palm Downtown/Palm Central Bay)" and not the Palm Garden.

Sequence of events narrated above, clearly goes to prove that the conduct of the opposite party, throughout remained contumacious. As stated above, not even a single permission to launch the project was available with the opposite party at the relevant time. As has been discussed in earlier part of this order, permissions continued to pour in, upto the year 2017. Even as on today, there is nothing on record to show that development at the site is complete. It can safely be said that the complainant was well within his right, to file this complaint. It was nowhere agreed to between the parties, at the time of booking of the said plot, that the complainant can be made to wait for an indefinite period.

At the same time, in the face of plea having been taken by the opposite party that it was required to deliver possession of the plot to the complainant by 13.06.2018, as per the terms and conditions of the supplementary Agreement, or by 31.07.2019, referred to above, as such, in the same breath taking a plea that the present case is beyond limitation or that time is not to be considered as essence of the contract, is not sustainable in the eyes of law and is accordingly rejected. Even otherwise, it is not the proven case of the opposite party that it was ready with delivery of possession of the plot, within a reasonable period of about two to three years, from the date of booking or say by 13.06.2018 even, but the complainant, failed to take the same, on account of some personal grounds/financial constraints. It is settled law that in the cases, where possession of the residential units is not offered by the builder, there is a continuing cause of action, in favour of the allottee/purchaser.

19. Further contention was raised by Counsel for the opposite party that in the face of provisions of the RERA, under which the opposite party has registered the project, in question, on 15.09.2017, it is not open to this Commission, to entertain and decide the present complaint. He further asserted that sufficient safeguard is provided under the provisions of RERA and if the complainant is feeling aggrieved of any action, on the part of the opposite party, he may approach under the said Act (RERA) and not under the Act, 1986.

We are not inclined to accept this argument. At the time of arguments, it is very fairly admitted by Counsel for the contesting parties, that the provisions of RERA are prospective in nature. It was also so said by the High Court of Bombay in the case of NeelKamal Realtors Suburban Pvt. Ltd. and anr. Vs. Union of India and ors. 2018 (1) R.C.R. (Civil) 298. It is an admitted fact that under the RERA, the opposite party got itself registered its project, only on 15.09.2017. Some of the provisions of RERA came into operation on 01.05.2016 and even the remaining of it, in May 2017. In all, the grievance has been raised by the complainant qua wrongful act/mistake done leading to deficiency in providing service and adoption of unfair trade practice, in selling the project by the opposite party without sanctions/approvals, before coming into existence of RERA. Reading of the provisions of Section 88 of RERA makes it very clear that the same are in addition and not in derogation of the provisions of any other law for the time being in force. Section 79 of the RERA further makes it very clear that jurisdiction of only the Civil Court to entertain a suit or proceedings qua action taken as per the provisions of the said Act, is barred. It may be stated here that the Consumer Foras under the Act, 1986, despite having some trappings of a Civil Court are not the Civil Courts. As such, the jurisdiction of the Consumer Foras is not debarred, to entertain the complaints filed by consumers, alleging deficiency in providing service, negligence and adoption of unfair trade practice against the opposite party. Intention of the framers of law has been made clear by the concerned Department i.e. Ministry of Housing and Urban Property Alleviation, Government of India in its website www.mygov.in/group/ministry-housing-and-urban-poverty-alleviation. Under Frequently Asked Questions (FAQ), at Sr.nos. 85 and 86, it was observed as under:-

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"85. Are the civil courts and consumer forums barred from entertaining disputes under the Act?

As per section 79 of the Act civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under section 12, 14, 18 and section 19, from the consumer forum and file it with the adjudicating officer appointed under the Act.

86. Can a complainant approach both the Regulatory Authority/adjudicating officer and the consumer forums for the same disputes?

The laws of the country do not permit forum shopping, thus, an aggrieved can only approach one of the two for disputes over the same matter."

It was also so said by the Government of State of Punjab in its Official Website Portal rera.punjab.gov.in. The above fact clearly indicates that in the face of provisions of the RERA, any action taken under the provisions of Act 1986 is not debarred.

Be that as it may, a similar question came up for consideration, before this Commission, when considering the applicability of the provisions of Section 8 (amended) of Arbitration Act 1996 Act viz a viz CPA 1986, in the case of 'Sarbjit Singh Vs. Puma Realtors Private Limited', IV (2016) CPJ 126, wherein, while relying upon ratio of judgments of the Hon'ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6 SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society

v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), it was held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint.

It was authoritatively said that in view of Section 3 of the Act 1986, it is open to the consumers to approach the Consumer Foras, for redressal of their grievance, notwithstanding that he/she can get relief under any other Act. Similar findings, to the effect that an Arbitration Clause in the Agreements between the complainant(s) and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, has been upheld by the Hon'ble Supreme Court of India, in Civil Appeal bearing No.23512-23513 of 2017, vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon'ble Supreme Court of India, vide order dated 10.12.2018. In view of above findings, we can safely say that provision of the RERA and Section 35 of PAPRA will not debar the jurisdiction of this Commission in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the opposite party.

20. In the present case, an attempt has been made to by-pass the above provision of PAPRA by

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showing the sale as an expression of interest to purchase a plot. It has been so said before this Commission, at the time of arguments, by Counsel for the opposite party that sale of the plot has not yet been confirmed. It may be stated here that it was an outright sale, when first payment of Rs.13,87,500/- was accepted by the opposite party, in the year 2012 and thereafter another amount, referred to above, till March 2014. Above said contention raised by Counsel for the opposite party, qua similar project, was rejected by this Commission, in Appeal No.248 of 2016, decided on 31.08.2016, titled as M/s Manohar Infrastructure and Constructions Pvt. Limited Vs. Sh.Tilak Raj Bakshi, wherein it was observed as under:-

"Furthermore, as is evident from the documents on record, the appellant is also guilty of violation of Section 6 of the Punjab Apartment and Property Regulation Act, 1995, (in short the PAPRA Act). In a very deceptive manner, an attempt has been made to show actual sale of plot, as an expression of interest. As has been held in earlier part of this order, vide document Annexure C-2, the terms and conditions of sale settled to make payment was also made available. Once it is so, by not offering the Buyers Agreement for signing in a reasonable time, say two to three months but on the other hand, after a lapse of many years of the sale of plot, the appellant has committed an unfair trade practice."

21. It is evident from the facts mentioned above that when the project in question was sold, neither CLU nor any other permission was available with the opposite party. The Agreement was entered into with the Govt. only on 14.06.2013, to launch this project and that too, subject to many conditions. It is also on record that to get necessary permission qua the land in the project, applications were moved in parts. Opposite party continued to purchase land and continued moving the applications, to the Authorities. Facts clearly indicate that the opposite party was guilty of launching a project against mandate of law.

22. In view of above, contention of Counsel for the opposite party that since the complainant himself has showed preference for a plot, after expression of interest was filled by him and he waited for allotment of a plot, as such, delay if any will be deemed to have been waived of by him, stands rejected. There is nothing on record to show that plot was selected by the complainant and further when the plot was sold, not even a single permission was available with the opposite party. There is nothing on record to show that delay caused was condoned by the complainant. The opposite party also cannot take shelter under the plea that time is not to be considered as essence of the contract.

23. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is not in dispute that the amount aforesaid, was paid by the complainant, without getting anything, in lieu thereof. Already a period of more than six years has lapsed, the complainant is still empty handed. 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 Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335. In view of above, the complainant is certainly entitled to get refund of the amount deposited, alongwith interest on the deposited amount, from the respective dates of payments actually made by him.

24. At the same time, it is also held that no complicated question of facts and law are involved in this case. It is a simple case of non-execution of agreement within the reasonable time; non-allotment of plot; and non-delivery of possession of the plot purchased by the complainant, in the project of the opposite party. This is a case of deficiency in providing service and also adoption unfair trade practice. This Commission is, therefore, competent to adjudicate the present complaint. Plea taken by the opposite party, in this regard, as such, stands rejected.

25. It has further been vehemently contended by Sh.I.P. Singh, Advocate, that possession of the plot will be offered on signing of buyer's agreement by the complainant. He may come and do so. It may be stated here that once it has been held above that the opposite party indulged into unfair trade practice and was also deficient in providing service, as it failed to obtain necessary permissions to

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launch and sell the said project and also there has been an inordinate delay in handing over possession of the plot, as such, now at this stage, this stand has no significant value in the eyes of law.

26. Now coming to the plea taken by the opposite party to the effect that the complainant defaulted in making payment towards price of the said unit, and he had paid only Rs.23,12,500/-, against total sale consideration of Rs.46,25,000/-, as such, he being defaulter is not entitled to any relief. In this regard, it is reiterated that once the opposite party has failed to prove that it had completed the development at the project site, even by the date when arguments were heard in this complaint, and at the same time, there is nothing on record to show that further demand of any amount was made by the opposite party, from him, as such, it cannot be heard to raise such a plea. Even otherwise, once the complainant, after making payment of Rs.23,12,500/-, did not see any construction and development activities at the project site, he was at liberty to stop making payment of further installments, in view of principle of law laid down by the Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the residential unit by the stipulated date, it cannot expect the allottee(s) to go on paying instalments to it. Similar view was also taken by the National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser.

27. As far as objection taken by the opposite party to the effect that the complaint is bad for non- joinder of M/s Manohar Infrastructure and Construction Private Limited, as necessary party, is concerned, it may be stated here that had the opposite party gone through the head note of this complaint, carefully, it would not have taken such an immature objection. The complainant has filed this complaint against M/s Manohar Infrastructure and Construction Private Limited only.

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

29. For the reasons recorded above, this complaint is partly accepted, with costs, and the opposite party is directed as under: -

i. To refund the amount Rs.23,12,500/-, to the complainant, alongwith interest @13% p.a., from the respective dates of deposits onwards.

ii. To pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices.

iii. To pay cost of litigation, to the tune of Rs.33,000/- to the complainant.

iv. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, in the manner ordered above, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @15% p.a., instead of @13%, from the date of default and interest @13% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

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

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

32. The file be consigned to Record Room, after completion Pronounced.

29.01.2019

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

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PRESIDENT

Sd/-

(PADMA PANDEY)

MEMBER

Sd/-

(RAJESH K. ARYA)

MEMBER

Rg.

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