Date of Decision : 30.03.2020 Swarn Preet Singh S/o Sh. Manjit Singh Kandola, R/o House No.2276, Sector-71, Mohali, Punjab. .Complainant Versus

1. M/s Preet Land Promoters & Developers Private Limited having its office at Sector-86, SAS Nagar, Mohali, Punjab, through its Directors Sh. Charan Singh Saini, Sh. Kanwal Jit Singh and Additional Director Sh. Raghubir Singh Dhiman.

2. Sh. Charan Singh Saini, Director M/s Preet Land Promoters & Developers Private Limited, having its Office at Sector-86,, SAS Nagar, Mohali, Punjab.

3. Sh. Kanwaljeet Singh, Director of M/s Preet Land Promoters & Developers Private Limited, having its office at Sector -86, SAS Nagar, Mohali, Punjab.

4. Sh. Raghubir Singh Dhiman, Additional Director of M/s Preet Land Promoters & Developers Private Limited, having its office at Sector-86, SAS Nagar, Mohali, Punjab. .Opposite Parties Consumer Complaint under Section 17 of the Consumer Protection Act, 1986. Consumer Complaint No. 8 of 2019 2 Quorum:- Honble Mr. Justice Paramjeet Singh Dhaliwal, President Mr. Rajinder Kumar Goyal, Member Mrs. Kiran Sibal, Member Present:- For the complainant : Sh. S.S.Gill, Advocate For OP nos.1,2 & 4 : Sh.K.S.Lang, Advocate For OP no.3 : Ex-parte RAJINDER KUMAR GOYAL, MEMBER: The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 (in short the Act), against the opposite parties (in short OPs) seeking following directions to them;-

i) to offer the possession of the said plot complete in all respects including the completion certificate; ii) to get the sale deed of the said plot executed in favour of the complainant after handing over the possession of the plot complete in all aspects including the completion certificate; iii) to pay interest @12% per annum on the amount deposited

i.e. Rs.38,55,110/- from the date of last payment till the handing over the possession complete in all aspects; iv) to refund the amount charged excessively for 50 square yards i.e. Rs.3,85,000/- alognwith interest @12% p.a. from the date of receipt till realization;

v) to pay compensation for mental agony and hardship amounting to Rs.3,00,000/-; vi) to pay compensation for litigation expenses of Rs.1,00,000/-. Consumer Complaint No. 8 of 2019 3 Or

i) to refund the amount of Rs.38,55,110/- alongwith interest @12% p.a. from the date of respective deposits till realization; ii) to pay compensation for mental agony and hardship amounting to Rs.3,00,000/-; and iii) to pay compensation for litigation expenses amount to Rs.1,00,000/-. Facts of the Complaint

2. Brief facts, as set out in the complaint, are that OPs floated a scheme under the name and style of Preet City, Sector- 86, Mohali and complainant became a member of society (The Dastkar Co-operative House Building Society Limited, Mohali) and purchased a plot measuring one kanal for his personal use and paid the amount of Rs.23,50,000/- alongwith membership charges of Rs.5110/-. The total sale consideration of the said plot was fixed as Rs.38,50,000/- (@Rs.7,700/- per square yards). Originally, the land was owned by two societies namely The Akash Co-operative H/B Society Limited and The Dastkar Co-operative H/B Society Limited and the land of the said scheme was transferred in the name of Preet Land Promoters & Developers Private Limited for the development of the area & allotment of residential plots to the members of the societies. The complainant made the following payments to the OPs: S.No. Dated Amount (in Rs.)

1. 01.12.2008 23,50,000/-

2. 01.12.2008 5110/-

3. 19.01.2009 4,00,000/- Consumer Complaint No. 8 of 2019 4

4. 05.02.2009 2,00,000/-

5. 03.03.2009 1,00,000/-

6. 09.03.2009 50,000/-

7. 05.05.2014 1,70,000/-

8. 05.05.2014 80,000/-

9. 09.04.2014 2,00,000/-

10. 12.05.2014 1,75,000/-

11. 02.12.2014 1,25,000/- Total 38,55,110/- OPs issued an allotment letter to him on 02.12.2014 after receiving above huge amount. OPs were to execute a buyers agreement with the complainant, however the OPs failed to execute the buyers agreement with the complainant and delayed the signing of buyer agreement on one pretext or the other. The complainant inquired from the OPs about the requisite permissions/approvals, layout plans, availability of water and electricity connections, however OPs failed to provide the necessary information and verbally assured that all the permissions/approvals were in place and they have even got electricity connection/load sanctioned for their project. According to Clause F of the allotment letter, the possession of the plots to all the members was to be delivered by the Preet Land Promoters after acquiring land, development of sector, payment of EDC, license fee and development fund etc. to the GMADA and approval of layout plan, zonal plan by the CTP/GMADA and other necessary approvals/sanctions by the concerned competent authorities. OPs are not in receipt of all the sanctions and approvals for developing the land and selling it to public and have befooled the public at large and are guilty of violating the relevant laws of and the Punjab Apartment and Property Regulation Act, 1995 (PAPRA). The OPs failed to handover the possession of the plot and to refund the Consumer Complaint No. 8 of 2019 5 amount to complainant. OPs are utilizing the money of complainant and are guilty of deficiency in service and unfair trade practice. The complainant was regularly calling and inquiring from the OPs regarding the possession of the said plot, as he had come to know that OPs have no approvals and sanctions to sell and develop the plots and are not transparent in their dealings and moreover in view of the fact that the construction of allotted plots is not to be made, as OPs do not even have licence to develop the land and sell the plots. Even after lapse of more than 10 years of accepting money from complainant, OPs have not handed over the physical possession of the said plot to him. The complainant visited the site of the project in November, 2018 and found that size of the plot initially booked has been decreased to 450 square yards without any intimation regarding the same being sent by the OPs. He also visited the office of OPs and requested them to handover the possession of the said plot and also requested for the refund of the amount charged for excess 50 square yards, since the area of the said plot had been decreased, as per the new layout plan, but OPs did not pay any heed to the requests of complainant. Alleging unfair trade practice and deficiency in service on the part of OPs, which caused mental agony, harassment and mental tension to the complainants, they filed the present complaint, seeking the above mentioned reliefs. Defence of OPs

3. Upon notice, OP nos.1,2 & 4 appeared and filed the written reply. Despite service, OP no.3 failed to appear and was proceeded against ex-parte, vide order dated 28.03.2019. Consumer Complaint No. 8 of 2019 6

4. OP nos.1, 2 and 4 contested the complaint raising preliminary objections that the complaint is not maintainable. Complaint is barred by limitation. The complainants have concealed the true facts from this Commission. The complainant filed the present complaint only to harass the answering OPs. On merits, it is submitted that the complainant has not made the party to the Dastkar Coop. House Building Society in the complaint. Being member of the society, complainant paid the land cost of his share of plot to the society. Moreover except the EDC Rs.1,25,000/- the answering OPs have not received any other amount from him. The Dastkar Co-op House Building Society is in existence and functioning. The Dastkar Co-op House Building Society allotted the share of plot to the complainant on the basis of no profit and no loss. The complainant purchased the plot for commercial purposes. The complainant is investor and due to the recession in the property business, now he does not want to continue to go with purchase of the property. It is further submitted that the answering OPs developed its sector as per the norms of GMADA and GMADA has approved the layout plan of the OPs. The development of the sector-

86 is in full swing. The complainant has not deposited the remaining amount of the land cost towards his plot registration. Answering OPs controverted the other averments of the complainant and denied that there was any unfair trade practice or deficiency in service on the part of answering OPs. Complaint is alleged to be without merit and sought to be dismissed with costs. Consumer Complaint No. 8 of 2019 7 Evidence of the parties

5. To prove his case, the complainant filed affidavit along with documents i.e. certificate of registration Ex.C-1, payment receipts Ex.C-2/1 to Ex.C-2/11, allotment letter Ex.C-3 and signatory details Ex.C-4.

6. On the other hand, OP nos.1, 2 & 4 have filed the affidavit of Sh. Raghubir Singh, Director of M/s Preet Land Promoters & Developer Pvt. Ltd. along with documents i.e. resolution dated 29.08.2018 Ex.OP-1, Change of land use permission Ex.OP-2, notification dated 13.10.2009 Ex.OP-3, Revised layout plan dated 18.06.2014 Ex.OP-4, Revised NOC dated 23.09.2016 Ex.OP-5, Ex.OP-6 is letter dated 22.08.2014 from GMADA to OP regarding provision of drinking water for Sector-86, SAS Nagar, Mohali and Ex.OP-7 is the NOC dated 09.12.2013 for sewerage connection and solid waste disposal of Sector-86, SAS Nagar, Mohali. Contentions of the parties

7. We have heard learned counsel for the complainant and OP nos.1, 2 & 4 and have gone through the record of the case carefully.

8. Learned counsel for complainant argued that OPs failed to complete/develop their project within the stipulated period, despite receiving substantial amount towards the price of the plot from the complainant. The OPs also failed to obtain the necessary and requisite permissions/approvals/sanctions before launching their project. The physical possession of the fully developed plot, along with all the basic amenities, has not been delivered in-spite of lapse of a considerable Consumer Complaint No. 8 of 2019 8 long period. Even there are no basic amenities provided at the site. It has been further contended that the OPs reduced the area of the said plot, without the consent of the complainant. Averring on the similar lines, as pleaded in the complaint, learned counsel for complainant prayed that due to deficiency in service and unfair trade practice on the part of the OPs, the complainant is entitled to all the reliefs, as prayed for in the complaint.

9. Learned counsel for OP nos.1, 2 and 4 argued to the contrary. It was contended that the complainant purchased the plot for investment purposes and not for personal use. The OPs have obtained all the necessary approvals to develop the project. The complainant is a member of Dastkar Coop. House Building Society; which is not the associate of OP nos.1, 2 and 4. Dastkar Society is in existence and functioning having its separate office and office bearers. OP nos.1, 2 &

3 have no concern with the amount paid by the complainant to the Society. They were authorized by the Society only to develop the land and allot plots as per share of the members of the society. The Society has no independent income and they are dependent upon the Society and its members in this regard. In case of non-payment of pending dues by the members in time, it is not possible for the answering OPs to meet the expenses for the development of the land of the Society. However, OP nos.1, 2 and 4 have developed their sector as per norms of GMADA. Therefore, no deficiency in service can be attributed to these opposite parties and the complaint is liable to be dismissed. Consumer Complaint No. 8 of 2019 9 Consideration of Contentions

10. We have given our thoughtful consideration to the arguments raised by the learned counsel for the parties.

11. Firstly, we would like to deal with the objection of the OP nos.1, 2 and 4 that the complainant has purchased the property for investment purposes. In this regard, it is relevant to mention that there is no evidence from the side of the OPs to prove that the complainant is indulging in sale purchase of property for commercial purpose or investment purposes and simple assertion in this regard in the reply of the OPs not sufficient to prove this fact. Honble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS

v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that that the appellant failed to show any cogent evidence, which may indicate that the respondents/ complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already said above, there is no rebuttal evidence led by the OPs to prove that the complainant indulged in sale purchase of properties and that they purchased the unit, in question, for further sale or for earning profits. Consumer Complaint No. 8 of 2019 10 Accordingly, the above said objection/contention of the OPs is rejected.

12. Secondly, the contention raised by the learned counsel for the opposite parties is that the complaint is barred by limitation. Vide allotment letter dated 02.12.2014 (Ex.C-3), the plot bearing No.322, measuring 1 Kanal, in question, was allotted to the complainant. As per clause 6 of this allotment letter, answering OPs specifically mentioned that total pending payment as on date is Rs.1,25,000/- and the land cost shown as nil. The complainant deposited the amount of Rs.1,25,000/- on the same date i.e. 02.12.2014, vide Ex.C-2/11. In this case, the complainant has already paid the full amount of land cost and development charges to the answering OPs and the Society. During arguments, the counsel for the OPs was asked to place any Completion Certificate of the project which he could not do. Moreover in para no.5 of the written reply, OPs specifically pleaded that the development of the sector is on full swing. No offer of possession has been given to the complainant so far, as such, there is a continuous cause of action and we are of the opinion that the complaint filed by the complainant is not barred by limitation. In this regard, we are fortified by the judgment passed by the Honble Supreme Court in Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012 titled as Raghava Estates Ltd. Vs. Vishnupuram Colony Welfare Association,. The Honble National Commission has also relied upon the law laid down in the above said judgment in the case Dr.Navin Khanna & 3 Ors. Vs. Unitech Reliable Project Pvt. Ltd., decided on 11.04.2016. Consumer Complaint No. 8 of 2019 11

13. Now coming to the merits of the case, admittedly, the complainant was allotted a plot bearing No.322, measuring 1 kanal by the OPs, vide allotment letter dated 02.12.2014, Ex.C-3. The complainant paid a total amount of Rs.38,55,110/-, vide Ex.C-2/1 to Ex.C-2/11. After receipt of above amount, the allotment letter was issued by answering OPs to complainant, wherein in Clause 6 of the allotment letter, it was stated that land cost nil and a pending payment of Rs.1,25,000/- was shown, which was paid on the same day and included in total deposit of Rs.38,55,1110/-. Despite receiving the amounts towards sale consideration, the answering OPs have failed to handover the possession of the plot. Even, no agreement was got executed between the answering OPs and complainant, despite receipt of above amount. The OPs also not mentioned any date of delivery of possession of the plot in question in the allotment letter. The above act of answering OPs is deficiency in service.

14. On the other hand, OPs in their evidence have produced on the record Change of Land Use (CLU) issued by from Department of Housing and Urban Development on 28.12.2006 (Ex.OP-2). This change of land use was subject to deposit of CLU, EDC and other charges levied by the State Government from time to time. The OPs have also placed on the record another notification dated 13.10.2009 (Ex.OP-3), vide which OP No.1 was exempted under Section 44 of the PAPRA subject to the following conditions:- viii) The development works shall be carried out in accordance with the lay-out plan sanctioned by the Chief Town Planner, Punjab (Competent Authority) keeping in view with such general guidelines as the Department of Housing Consumer Complaint No. 8 of 2019 12 and Urban Development may issue in respect of such Housing Projects from time to time. ix) XX XX XX XX XX

x) 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. xi) The promoter acquires the entire project land in its name including land under agreement to develop and requested to be acquired by Government. xii) The promoter shall be responsible for obtaining the Final NOC from Punjab Pollution Control Board. xiii) Before starting the development of the proposed project promoter shall obtain environmental clearance from the Ministry of Environmental & Forest Government of India as required under EIA notification dated 14-9-2007 as well as consent to establish (NOC) from the Punjab Pollution Control Board. xiv) Promoter will not carry out any works on the site till above conditions are fulfilled.

15. The OPs have not tendered any document in their evidence to prove that above mentioned conditions have been complied with. Mere notification issued by the Government is not sufficient to prove that the opposite parties have complied with the conditions.

16. The OPs have filed a letter issued by PSPCL, wherein revised NOC was issued to M/s Preet Land Promoters & Developers Pvt. Ltd. As per letter it clearly proves that the layout plan was approved only on 18.06.2014 by the Chief Town Planner, Punjab, Chandigarh i.e. at much later stage of launching the project and Consumer Complaint No. 8 of 2019 13 bookings done by the OPs, which itself is a deficiency in service on the part of the opposite parties.

17. To initiate any project, the OPs are required to follow the basic approvals as laid down in Section 3, 4 and 6 of the PAPRA. According to these provisions, the opposite parties shall not issue any advertisement, prospectus or offer of sale of any apartment or invite application till it completes the above referred formalities that it has been registered as a Promoter under Section 21(2) of the Act, disclose the area of plots, price payable, layout plan of validity of the license issued by the Competent Authority and under Section 6 that maximum 25% of the price can be accepted before entering into agreement and in the agreement, it should be clearly mentioned as to when the possession shall be delivered. In this case, full amount of sale consideration was received by OPs, but possession has not been delivered to the complainant. Therefore, the OPs contravened the provisions of PAPRA for not delivering the possession despite receiving the amount towards the cost of the plot. Even in the allotment letter or in any other correspondence, no outer date has been given as to when the possession of the plot will be given after development at the site. In case we go through the conditions laid down by the competent authority when CLU or approval of zoning plan was given, OP no.1 has not complied with the directions given in those documents. The OPs have not placed on record any document showing the final date as to when the possession will be given. In case no outer date is given in the allotment letter, then it could be taken as a reasonable time, which can be 3 years and in case opposite parties Consumer Complaint No. 8 of 2019 14 have issued allotment letter in the year 2014 then the plot should have been developed and its possession should have been offered to the complainant within a period of 3 years, whereas the complainant have already deposited the amount upto 02.12.2012, as proved on record, vide Ex.C-3 allotment letter and vide Ex.C-2/1 to Ex.C-2/11, the receipts of payments. In these circumstances, the complainant cannot be expected to wait for an unlimited period.

18. The C.P. Act came into being in the year 1986. It is one of the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not an iota of evidence led by the opposite parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainants have made payment of substantial amount to the opposite parties with the hope to get the possession of the plot in a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and construction in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested their money with the opposite parties, they would have invested the same elsewhere. There is escalation in the price of construction also. The complainant have suffered loss, as discussed above. The builder is under obligation to deliver the possession of the plot within a reasonable period. The complainants Consumer Complaint No. 8 of 2019 15 cannot be made to wait indefinitely to get possession of the plot booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that it had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainant to book the plot, due to which the complainants have suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainants is a deposit held by the opposite parties in trust of complainants and it should be used for the purpose of development of the project site, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainants for failure to deliver the possession, so has been held in catena of judgments by the Honble Supreme Court and the Honble National Commission. To get the relief, the complainants have to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainants, are also required to be taken into consideration for awarding compensation. In addition to that he is also entitled to compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by him on account of the betrayal by the opposite parties in shattering their hope Consumer Complaint No. 8 of 2019 16 of getting the plot by waiting for all this period.

19. As per Rule 17 of the Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of PAPRA, it has been provided as under:-

17. Rate of interest on refund of advance money upon cancellation of agreement: The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment.

20. OP nos.1, 2 and 4 pleaded that they have no concern with the affairs of the Society, the Dastkar Co-operative House Building Society, who is not made a party in the complainant, as no amount was ever charged by them from the complainant, except the development charges, and that most of the amount has been received by the Society. They further pleaded that they are having separate office and office bearers from the Society. No doubt, the major amount has been paid by the complainant to the Society, but it is also a fact that the allotment letter Ex.C-3 has been issued by OP no.1. Moreover, OP no.1 also issued receipt of Rs.1,25,000/-, Ex.C-2/11. In their written reply, OPs pleaded that Society authorised OP no.1 to develop the land of the society and allot the plots, as per the share of the members of the society. It is proved on record that complainant has already paid the land of the cost to the society, vide Ex.C-2/1 to Ex.C-2/10 and answering OPs also admitted this fact in allotment letter Ex.C-3, vide Clause 6, showing the land cost as Nil. Answering OPs, specifically mentioned in clause 6 of Ex.C-3, that total pending payment as on date Consumer Complaint No. 8 of 2019 17 is Rs.1,25,000/-, which was deposited by complainant on the same date of issuance of allotment letter, vide Ex.C-2/11. Answering OPs admitted in clause 1(d) of the allotment letter that original land owned by the two societies, namely The Akash Co-operative H/B Society Ltd. & The Dastkar Co-operative H/B Society Ltd. was transferred in the name of Preet Land Promoters & Developers Pvt. Ltd. But they have not placed on record any agreement/MoU executed between societies and answering OPs to show the liability/responsibility of answering OPs. This is not the case of the answering Ops that they did not got transferred the land in question from the above societies in their name free of cost. Rather Clause 1(d) of the allotment letter Ex.C-3 reads as under:- The original land owned by the two societies, namely The Akash Co-operative H/B Society Ltd. & The Dastkar Co- operative H/B Society Ltd. was transferred in the name of Preet Land Promoters & Developers Pvt. Ltd. Sector 86, Mohali for the development of the area and allot residential plots to the members of the societies. Therefore, the allotment of plots to them will be made by Preet Land Promoters & Developers Pvt. Ltd. on behalf of the Akash & Dastkar Co-operative H/B Societies. It is admitted that answering OPs are liable firstly to develop the area and then to allot the residential plots to the members of the society. It is not the case of the answering OPs that above societies have not paid any development charges, received from members of society, to the answering OPs, whereas in this case, the complainant has already paid the all the development charges to the society and the answering OPs, vide Ex.C-2/3 to Ex.C-2/11. In this case, the total amount has Consumer Complaint No. 8 of 2019 18 been received from complainant and thereafter he was allotted a plot only and no buyers agreement has been executed in this case by answering OPs in favour of complainant. Clause 10 of the allotment letter issued by OP no.1 reads as under:-

10. The allottee shall be offered to take possession of the site after development of the whole sector. On payment of entire consideration together with interest due & taking over the physical possession of the plot, allottee shall execute a deed of conveyance in the prescribed form. All expenses being incurred towards stamp duty, registration fees, mutation charges, documentations charges, legal, maintenance charges and other charges, if any, on account of execution and registration of conveyance deed/sale deed shall be borne and paid by the allottee. The reading of clause 1(d), (f) and Clause 3 of Ex.C-3, allotment letter, clearly mention that land stand transferred in the name of OP no.1 and after transfer everything was to be done by OPs, as on transfer of land by the Society in the name of OP no.1 all rights and liabilities vest in it. Now, the OPs cannot escape from its liability to deliver the possession of the plot in question to complainant alongwith completion/occupation certificate, as assured in Clause 1(f) of the allotment letter Ex.C-3 and it will also comply with the terms and conditions as mentioned in clause

10 of the allotment letter i.e. to execute the deed of conveyance etc. In such circumstances, the OPs are jointly and severally responsible for development of the land and delivery of physical possession of the plot to the complainant.

21. Now the question is to decide who will be liable to pay the refund/compensation on account of delay on the part of the OPs and Consumer Complaint No. 8 of 2019 19 Society. In this regard, we have gone through the record and found that no agreement was entered into between the answering OPs and the Society to fix the liability of any of the party, rather all the answering OPs and Society were receiving the payments from the complainant. Perusal of allotment letter, Ex.C-3, it proves that OPs and said Society are stepped into the shoes of each other or it can be said that they are working jointly. Therefore, we are of the view that OPs are jointly and severally liable to pay compensation and to give the possession of the plot in question to complainant.

22. So far as the grievance of the complainant that he visited the site of the project in November, 2018 and found that the size of the plot has been decreased to 450 square yards without any intimation to him regarding the same. We have gone through the record carefully and found no document/letter in this regard placed on record by complainant. It is pertinent to mention that the complainant has signed the allotment letter and accepted the terms and conditions of the allotment letter. As per clause 4 of the allotment letter Ex.C-3, the exact size of the plot is subject to variation, as per actual measurement at the time of delivery of physical possession. In this case, the OPs till date have not delivered the physical possession of the plot. In case at the time of delivery of physical possession of plot in question, OPs deliver the possession of less area of plot, then complainant shall be entitled to refund of the excess amount received by OPs.

23. In this case, the complainant has prayed that OPs be directed to offer the possession of the said plot complete in all respects including completion certificate alongwith compensation and cost or in Consumer Complaint No. 8 of 2019 20 alternate to refund the desposited amount of Rs.38,55,110/- alongwith interest @12% per annum. Whereas out of the above deposited amount of Rs.38,55,110/-, only Rs.1,25,000/- has been paid to OPs and the balance amount of Rs.37,30,000/- has been paid to the Dastkar Co-operative Housing Building Society Limited, vide Ex.C-2/1 to Ex.C-2/10, but the complainant has not impleaded the said Society as a party in this case, which is a necessary party for claiming refund of the deposited amount. Therefore, we are of the opinion that the OPs are liable to deliver the possession of the plot in question to complainant only and not to refund the entire amount deposited with the Dastkar Co-operative Housing Building Society Limited.

24. In view of the above discussion, the complaint is allowed and the following directions are issued to the OPs:-

i) to deliver actual and physical possession of the said plot, in the question, complete in all respects, along with agreed facilities and amenities with Completion/Occupation Certificate, subject to payment of balance sale consideration, if any, without any interest and penalty thereon and to execute the Sale/Conveyance Deed in favour of the complainants, as per clause 10 of the allotment letter; ii) to pay compensation for delay in delivery of possession in the shape of interest at the rate of 12% er annum on the amount deposited by the complainant from the stipulated date of delivery

i.e. 02.12.2017 till actual and physical delivery of possession of the unit, as ordered above; and Consumer Complaint No. 8 of 2019 21 iii) to pay composite litigation expenses and compensation for the mental and harassment suffered by the complainant to the tune of Rs.40,000/-; and iv) the remaining sale consideration and other expenses for registration etc., if any, payable by the complainant shall be adjusted from above said liability of the OPs. The compliance of this order shall be made by the OPs within a period of 60 days of the receipt of certified copy of the order.

25. Since, the complainant had made the entire payment, except Rs.1,25,000/- to OP no.1, for the allotted plot to the Dastkar Co- operative Housing Building Society Limited. So, alternative relief of refund cannot be allowed against OPs, but liberty is granted to the complainant to claim refund from the Dastkar Co-operative Housing Building Society Limited in accordance with law, if he fail get the possession of the plot in question from OP no.1.