VATIKA LIMITED Vs. SHALEEN CHUGH & ANR.

JUDGEMENT

(1.) Challenge in these Revision Petitions, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), is to the common order dated 10.11.2016, passed by the State Consumer Disputes Redressal Commission, Rajasthan at Jaipur Bench No.1 (for short "the State Commission") in First Appeal Nos.757 and 756 of 2015 preferred by the Opposite Parties and First Appeal Nos.784 and 785 of 2015 preferred by the Complainants. By the impugned order, the State Commission has dismissed the Appeal preferred by the Petitioner herein and partly allowed the Appeals preferred by the Complainants enhancing the compensation from Rs.20,000/- awarded by the District Consumer Disputes Redressal Forum at Jaipur (for short "the District Forum") to Rs.50,000/-. The District Forum has directed the Developer to refund to the Complainants the deposited amount with interest @ 12% p.a. from the respective dates of deposits till realization, refund of process fee, together with compensation of Rs.20,000/- and costs of Rs.5,000/-. The amount was directed to be paid within two months from the date of the order, failing which, the Complainants would be entitled to receive interest @ 10% p.a. on Rs.25,000/-. The Complaint against the second Opposite Party, namely, HDFC Bank was dismissed.

(2.) The facts material to the case are that the Complainants, who are Indian Nationals and working at U.A.E., entered into an Agreement with the first Opposite Party on 20.09.2007 and deposited Rs.6,40,700/- on 29.05.2007 for Unit No.12A/GF/AC in the residential project of the first Opposite Party and had taken loan from the second Opposite Party and started paying the EMIs. The first Opposite Party had promised that the project would be developed within a stipulated period of 18 months and as per Clause 10.1 of the said Agreement, the delivery of possession would be handed over within three years from the date of the Agreement, failing which, the earnest money would be returned with interest @ 18% p.a. The first Opposite Party violated the Agreement by not providing the information regarding the occupation till 22.05.2011, on account of which the Complainants could not pay the loan amount to the Bank. On 22.05.2011, the Complainants addressed a letter to the first Opposite Party cancelling the allotment and seeking refund of the amount which was paid. Thereafter, they received a reply on 28.11.2011 demanding them to pay an amount of Rs.4,56,977.54ps., failing which, the Agreement would be cancelled. Vexed with the attitude of the first Opposite Party, the Complainants approached the District Forum seeking refund of the deposited amount with interest @ 18% p.a. together with the refund of the process fee of Rs.21,507/-.

(3.) The first Opposite Party filed their reply before the District Forum stating that the flat was ready for possession and the same was informed to the Complainants on 28.11.2011 but despite several reminders, the Complainants did not take possession and also did not adhere to the terms of the Agreement. The project was a large one and consumed a lot of time in its completion and for all reasons beyond their control, there was a delay in delivery of possession. As the Complainants did not pay the balance amount, the payment of the home loan amount taken by them through the Bank was made by the first Opposite Party vide letter dated 26.03.2012 and the remaining amount of earnest money was forfeited. It was pleaded that the Complainants had purchased the flat for earning profits and for further sale and therefore, they did not fall within the ambit of definition of "Consumer" as stipulated in Section 2(1)(d) of the Act. The amount deposited by the Complainants was forfeited in accordance with Condition No.4 of the Agreement and therefore, no deficiency of service can be attributed to the Appellant herein. It was also averred that the Complainants instead of invoking Condition No.41, Arbitration Clause, have wrongly approached the Consumer Fora.