Chandigarh

StateCommission

A/126/2023

PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY/BDA BATHINDA DEVELOPMENT AUTHORITY THROUGH ITS ESTATE OFFICERT - Complainant(s)

Versus

DEV RAJ S/O LATE SH SADHU RAM AGED ABOUT 70 YEARS ADVOCATE PUNJAB AND HARYANA HIGH COURT CHANDIGARH - Opp.Party(s)

ASHISH GROVER

29 Aug 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	126 of 2023
Date of Institution	:	22.05.2023
Date of Decision	:	29.08.2023

 

 

 

 

 

 

Punjab Urban Planning & Development Authority/BDA (Bathinda Development Authority), PUDA Complex, Bhagu road, Bathinda through its Estate Officer..

….Appellant/Opposite Party.

Versus

Sh. Dev Raj S/o Late Sh. Sadhu Ram, aged about 70 years, Advocate, Punjab & Haryana High Court, Chandigarh & Resident of H.No.1212, Sector 15, Panchkula.

...Respondent/Complainant.

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                     MR. RAJESH K. ARYA, MEMBER

ARGUED BY :-    

Sh. Ashish Grover, Advocate for the appellant.

Sh. Sahil Garg, Advocate for the respondent.

PER  RAJESH  K. ARYA, MEMBER

          This appeal has been filed by the opposite party - Punjab Urban Planning & Development Authority/BDA (Bathinda Development Authority) (appellant herein) against order dated 14.09.2022 passed by District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short ‘District Commission), vide which, consumer complaint No.970 of 2021 filed by the complainant – Sh. Dev Raj (respondent herein) has been allowed directing the appellant to refund to the respondent an amount of Rs.15,20,140/- alongwith interest @10% p.a. from the respective dates of deposit till its payment besides awarding Rs.50,000/-and Rs.20,000/- towards compensation for causing him immense mental agony & harassment and litigation cost respectively. The order has been directed to be complied with by the appellant within a period of 30 days from the date of receipt of its copy, failing which, the appellant has been made liable to pay additional cost of Rs.35,000/- apart from the above awarded amounts.

2]      The facts of the case, as narrated in the impugned order passed by the District Commission, are as under:-

“Concisely put, the case of the complainant is that he is a senior citizen and practicing Advocate.  It is stated that Opposite Party in the year 2012 invited applications for allotment of residential plots at PUDA Enclave (Sugar Mill Site), Budhlada @Rs.6,000/- per square yards.(Ann.C-2).   It is stated that the complainant was interested in having a residential house for himself and his family use, as such, he applied for a residential plot of 250 sq. yd. vide application no.3723 along with a demand draft for Rs.1,50,000/- i.e. 10 % of the total cost of plot. Thereafter, the complainant was successful in draw of lots held on 15.01.2013 and vide letter of intent bearing no. PUDA-EO/2013/1745 dated 26.02.2013, a plot of 250 sq. yd. was intended to be allotted to the complainant and 15 % amount was demanded in order to complete 25% of the total price of the plot, to be made in 30 days from the issue of letter of intent (Ann.C-3). the complainant duly sent a demand draft bearing no.918880 dated 11.03.2013 drawn on Andhra Bank for Rs.2,25,000/- in favour of the Opposite Party through registered post on 12.03.2013 (Ann.C-4(Colly). That 25 % amount paid by the complainant remained with the Opposite Party and the Opposite Party utilized the hard earned money of the complainant but didn't carry out any development at the site. The Opposite Party after almost 4 years vide memo no.PUDA/E.O/2016/7781 dated 28.10.2016 allotted a plot no.1053 measuring 250 sq. yds. along with payment schedule (Ann.C-5). The complainant made the payment of first installment which fell due on 27.10.2017 through demand draft bearing no.641230 dated 22.10.2017 for Rs.3,22,500/- which included interest of Rs.1,35,000/- duly sent through registered post on 22.10.2017 (Ann.C-6 (Colly). It is stated that the allotment letter allotting Plot No. 1053, measuring 250 sq. yards was issued on 28.10.2016 but the Opposite Party was well aware that the possession, was not possible, as the plot no.1053 was as per the original lay out plan which stood changed on 19.10.2016 before allotment on 28.10.2016 and thus, the conduct of Opposite Party has been very unfair and it allotted Plot No. 1053 with a view to illegally charge interest from the complainant. It is also stated that the Opposite Party vide letter dated 23.02.2018 (Ann.C-7) intimated that due to technical reasons, re-planning was done and draw of plots was again held on 17.01.2018, in pursuance of which the complainant was allotted plot no.818 measuring 256.67 sq. yds. and that the possession will be delivered between 21.02.2018 to 01.03.2018 and, if possession was not taken by 01.03.2018 then possession would be deemed to have been delivered on 01.03.2018, whereas Clause No.13 of Letter of Intent provides 60 days time for possession from the issue of Letter of Allotment. It is submitted that the possession offered was not valid and legal as development works were not complete and further, the letter was received, when the time to take possession was almost over.  However, the complainant deposited Rs.40,020/- for additional 6.67 sq. yards area through demand draft dated 18.04.2018 (Ann. C-8 (colly). The complainant deposited a sum of Rs.2,43,750/towards 2nd installment on 21.04.2018 which included interest of Rs.56,250/- through demand (Ann.C-9 (colly).  The complainant in order to avoid the payment of further exorbitant interest on the remaining installments, paid the entire balance amount of Rs.7,30,120/- vide demand draft dated 28.05.2018 (Ann.C-10 (colly).

         It is submitted that the complainant filed a complaint before the Hon'ble SCDRC, Punjab on 20.11.2018, seeking rescheduling of installments and refund of interest on installments, interest on 25% amount and 5% discount on first and second installments, compensation etc. mainly on the ground that the allotment letter dated 28.10.2016, allotting Plot No. 1053, measuring 250 sq. yards was issued on basis of non-existing layout plan which stood changed as per the revised layout plan dated 19.10.2016 and, thus, possession of the same was not possible and thereafter the Opposite Party allotted plot No.818 vide letter dated 23.02.2018 which shows that the allotment of Plot No. 1053 was made to illegally charge interest from complainant and other allottees. The said complaint was allowed by the Hon'ble State Consumer Disputes Redressal Commission, Punjab vide its order dated 11.03.2019 (Ann.C-11). It is also submitted that from the information obtained under the Right to Information Act, 2005 by one Mrs. Raksha Devi, in July, 2020, the complainant came to know that the Opposite Party had participated in a meeting of Finance and Accounts Committee of PUDA at Mohali on 28.06.2019, wherein with regard to agenda item no.92.02, while admitting non-completion of development works timely and the fact that market rate was less than the allotment rate of Rs.6000/- per sq. yard, approval was granted (i) for not charging any interest from allottees till the start/delivery of possession date of 01.03.2018, (ii) where the allottees who sought refund of deposited amount of plots, they may be refunded deposited amount without any deduction and without any interest. The information also revealed that out of 1115 plots, 784 plots were allotted and 550 allottees have withdrawn from the scheme and number of left over allottees as on 10.06.2020 was 232, which is now further reduced to 116 allottees as per RTI information dated 12.07.2021 (in fact 23.07.2020) (Ann.C-12 (Colly). It is further submitted that in such circumstances, the complainant also applied for refund of his deposited amount along with appropriate /prevailing rate of interest from the date of respective deposits vide letter dated 30.05.2020 sent through speed post & email and it was also mentioned that he will not press for the execution of the award passed by the Hon'ble SCDRC, Punjab in case his request was acceded to (Ann.C-13 (Colly). It is pleaded that the Estate Officer, BDA/Opposite Party, instead of refunding the amount along with interest to the complainant, vide letter dated 24.12.2020 (Ann.C-14), informed that the amount deposited by the complainant could be refunded without any interest and deduction, and in an unfair manner sought affidavit to the effect that the complainant will not file any execution and, in future, will not file any complaint/appeal case in any Court/Forum/Commission. As the request for refund with interest was declined, so, the complainant, filed execution application bearing No.86 of 2021 before the Hon'ble Punjab State Consumer Disputes Redressal Commission. The Opposite Party instead of making the payment, filed FA No.517 of 2021 on 11.08.2021, after more than two years of passing of the order dated 11.03.2019, which was dismissed by the Hon'ble National Commission vide its order dated 18.08.2021. Subsequently, the complainant received decretal amount except Rs.35,000/- on 23.08.2021.

         It is also pleaded that the act of allowing refund to a large number of allottees makes it abundantly clear that the Opposite Party has abandoned the project and the complainant has every right to seek refund and the Opposite Party is bound to refund the amount along with interest from the respective date(s) of deposit(s) to the complainant. It is submitted that the Opposite Party did not inform the complainant about its aforesaid decision taken in the meeting of Finance and Accounts Committee of PUDA at Mohali on 28.06.2019 and thus discriminated and denied the opportunity to seek refund in the year 2019 and had he been informed/given option to seek refund, he could get the refund more than two years ago. It is also submitted that it is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course; the obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so held by the Hon'ble Supreme Court in Union of India vs Tata Chemicals Ltd. (Supreme Court) (2014) 6 SCC 335) that when amount is refunded, the interest has to be paid. Further, in the present case, the development works are not complete and legal possession of the plot has not yet been offered.  As per the RTI information obtained vide letter dated 12.07.2021 (Ann.C-16), out of 784 allottees, the left over allottees are now only 116. Further as per RTI information dated 02.08.2021 and 13.08.2021 (Ann.C-17), the work of HT/LT was completed/handed over to PSPCL on 20.11.2018, as per orders of the Head Office, the development works in Parks were not executed, which falsifies the claim of Opposite Party that development works were complete when possession was offered vide letter dated 23.02.2018 (Ann.C-8). Further, no commercial site/booth has been allotted/sold till date. It is asserted that the Hon'ble District Consumer Disputes Redressal Commission Mansa in its judgment dated 29.10.2021 in CC No. 78 of 2019 titled 'Jaspal S/o Diwan Chand Versus PUDA, Bathinda' and 23 other connected complaints, has observed that development works such as the boundary wall has not been constructed and water supply is also not available. It is also asserted that these facts/documents also falsify the stand of the Opposite Party that development was complete when possession of changed plot was hurriedly offered on 23.02.2018. It is further asserted that since the project stands abandoned by the Opposite Party, the complainant is entitled to refund of balance amount of Rs. 15,20,140/- along with interest @10% from the date(s) of respective deposits apart from compensation for harassment and litigation expenses. Hence, this complaint has been preferred.

2]       The OP has filed reply and while admitting the factual matrix of the case, took objection about the complaint being time barred and present dispute is to be dealt with by Arbitrator per allotment letter.  It is stated that it is not the case of the complainant that the letter in any manner changed the plot allotted to him, it merely communicated the change in plot number and the said fact does not in any manner give any alleged cause of action.  It is denied that possession offered was not valid or legal or that development works were not complete or that the letter had been received when the time to take possession was almost over.  It is denied that the alleged refund allowed to large number of allottees establishes in any manner that the project has been abandoned or that the complainant has every right to seek refund or that the OP is bound to refund the amount along with interest from the respective date of deposit to the complainant. It is submitted that the complainant has already instituted a complaint and got relief in the same from the Hon’ble State Consumer Disputes Redressal Commission, Punjab and has further received the award amount under the said complaint and he never claimed the relief sought through the present complaint despite being aware of the same, consequently the present complaint is not maintainable.  It is submitted that the possession of the plot in question has already been offered and given to complainant as per letter dated 23.2.2018 and he retains ownership of the said plot till date.

         It is pleaded that the colony was completely developed at the time of offer of possession to complainant vide letter dated 23.2.2018.  It is also pleaded that Green plants/flower plants, green grass on both sides of roads was planted at that time.  It is denied that basic amenities like water, sewerage etc. are not available at the site.  It is submitted that infact the complainant was required to get building plan sanctioned and then to apply for water connection but he never applied for sanction of building plans and water connection, so he cannot say that basic amenities like water, sewerage etc. are not available at site.  It is also submitted that the complainant is not entitled to refund. All other allegations have been denied and a prayer for dismissal of the complaint has been made.”

3]      After hearing the contesting parties and going through the material available on record, the District Commission allowed the complaint, as stated above.

4]      During the course of arguments, without arguing on merits of the case, learned Counsel for the appellant mainly submitted that the respondent is not a consumer as defined under Consumer Protection Act, 2019 as he had purchased the said plot not for personal use but to earn profits by reselling it in the open market at the later stage; that the relief claimed by the respondent was available at the time of filing of earlier complaint and is barred under Order 2 Rule 2 CPC; that the District Commission was not having any territorial jurisdiction to entertain and adjudicate the complaint under Section 34(2)(d) of Consumer Protection Act, 2019; that the District Commission, while passing the impugned order and awarding interest @10%, has overlooked the latest judgment of Hon’ble Supreme Court in the case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishekh Khanna and other, wherein 9% interest was awarded on refund of the deposited amount without granting any amount towards compensation and litigation expenses. It was further argued that Hon’ble National Commission, New Delhi in case titled Chief Administrator and another Vs. Manju Chauhan, First Appeal No.1703 of 2019, reduced the interest from 12% to 6%.

5]      On the other hand, learned counsel for the respondent/ complainant has argued that in the present appeal, there is an inordinate delay of 204 days and the appellant has miserably failed to explain the various chunks/spells of days, the largest spell being of approximately four months whereas it is settled law that each day’s delay has to be explained. It has been submitted that the huge delay having remained unexplained and there being no reasonable and sufficient grounds for condonation of the same, the appeal be dismissed at the thresh-hold being barred by limitation. It has further been submitted that the respondent hails from Bareta, a town nearby the project of the appellant at Budhlada, and as such, he purchased the said plot for residential purpose for his family use and as such, very much a consumer qua the appellant. It has further been submitted that the contention of the appellant that relief claimed was available at the time of filing of earlier complaint and is barred under Order 2 Rule 2 CPC is highly incorrect and misconceived, firstly, on the ground that the Policy decision dated 28.06.2019 vide which allottees were given option to withdraw from the scheme, was after the decision dated 11.03.2019 in the first complaint and secondly, in view of law settled by the Hon’ble Supreme Court that the provisions of Code of Civil Procedure, except to the extent that are incorporated in the Consumer Protection Act, are not applicable to the proceedings under the Consumer Protection Act. It has further been stated that since the respondent is a practicing Advocate at Punjab and Haryana High Court at Chandigarh and is working for gain at Chandigarh, therefore, this Commission had the territorial jurisdiction to entertain and adjudicate the complaint under Section 34(2)(d) of Consumer Protection Act, 2019. Lastly, prayer for dismissal of the appeal with costs has been made.

6]      We have heard the learned Counsel for the parties and have also gone through the impugned order; the documentary evidence/material available on record and the written arguments of the parties. The following questions arise in the present appeal for consideration of this Commission:-

(a)      Whether the explanation given in the application for delay in filing the appeal constitutes sufficient cause in order to condone the said delay?

(b)      Whether the respondent is a consumer under Consumer Protection Act, 2019?

(c)      Whether the District Commission was having the territorial jurisdiction to entertain and adjudicate the complaint under Section 34(2)(d) of Consumer Protection Act, 2019?

(d)      Whether the relief claimed by the respondent was available at the time of filing of earlier complaint and is barred under Order 2 Rule 2 of Code of Civil Procedure 1908?

(e)      Whether award of interest @10% by the District Commission on the amount ordered to be refunded alongwith compensation and litigation costs is justified?

7]      Firstly dealing with the issue qua delay in filing the present appeal, it may be stated here that the appellant has moved an application bearing No.465 of 2023 seeking condonation of the delay of 190 days (as per office report 204 days) wherein it has been stated that after receipt of the certified copy of the order dated 14.09.2022, a note was prepared by the dealing assistant, who forwarded it to the Superintendent of the branch on 30.09.2022, where after it was sent to the appellant on 03.10.2022. It has further been stated that the office of the appellant called the records and comments on previous complaint filed by the respondent and the case file was then forwarded to the legal cell on 11.10.2022 for taking further action, which was returned to the office of the appellant with a note dated 12.10.2022 alongwith the opinion for seeking further orders. It has further been stated that on 20.10.2022, it was decided by the office of the appellant that the case relates to Sugar Mill Site Budhlada under OUVGL, thus, further orders regarding filing of appeal be taken from Chief Administrator, PUDA, Mohali. It has further been stated that on receipt of the case file by the said office, the same was marked to legal cell for comments and after examining the file, the legal cell sent the same back through proper channel on 16.11.2022 for seeking comments from Additional Chief Administrator, BDA regarding action taken earlier in similar appeals. It has further been stated that the case file was then sent back to the office of the Chief Administrator, PUDA, Mohali with requisite information as desired by the said office. It has further been stated that after receipt of the case file, the same was marked to legal cell of PUDA for comments where file remained in process from one desk to another on account of various requirements. It has further been stated that on 22.12.2022, the office of Chief Administrator, PUDA, Mohali gave its consent for filing the appeal before this Commission. It has further been stated that after receiving the case file back from Mohali, the same was processed in the office of the appellant for engaging the counsel from the panel and the competent authority issued the requisite sanction in favour of the counsel on 06.01.2023. It has further been stated that the complete records of the case was sent to the counsel by post on 23.01.2023 and the said counsel prepared the draft appeal on 29.01.2023 and sent the same to the office of the appellant for signatures. It has further been stated that the draft appeal was vetted by the legal section and thereafter sent to the accounts branch for getting the requisite draft prepared to be filed alongwith the appeal, after making due calculations in accordance with the impugned order. It has further been stated that as the site in issue was OUVGL, thus, demand was raised to Head Office, Mohali for transferring funds for filing the appeal and after receiving the funds from head office on 09.05.2023, the requisite draft amounting to Rs.12,87,292/- was prepared on 11.05.2023. It has further been stated that the draft appeal prepared by the counsel for the appellant after finalization and after due signatures alongwith the draft was sent to the counsel for filing the same before this Commission. It has further been stated that the delay in filing the appeal is neither intentional nor with any motive but a procedural delay. It has further been stated that the appellant is a public authority and shall suffer an irreparable loss, if the delay is not condoned and the appeal is not heard on merits. It has further been stated that it will lead to multiplicity of litigation and will lead to loss of state exchequer. The reasoning given in the application is duly supported by an affidavit of Sh. Tarun Aggarwal, Estate Officer, Bathinda Development Authority having its office at PUDA Complex, Bhagu Road, Bathinda.

8]      It is settled law that the laws of limitation are founded on public policy. Statutes of limitation are sometimes described as “statutes of peace and repose”. It is also equally settled that an unlimited and perpetual threat of limitation creates insecurity and uncertainty; nevertheless, some kind of limitation is essential for public order. The discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. In Basawaraj and Anr. Vs. Special Land Acquisition Officer, (2013) 14 SCC 81, it was held by Hon’ble Apex Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It was further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It was further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigor when prescribed by statute. It was further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It was observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It was further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.

9]      Similarly in Pundlik Jalam Patil Vs. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448, it was observed by Hon’ble Apex Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and “do not slumber over their rights”. It may be stated here that so far as expression “sufficient cause” is concerned, the Hon’ble Apex Court in M/s GMG Engineering Industries & Ors. Vs. M/s ISSA Green Power Solution & Ors. (supra) has held in Para 8 as under:-

“8. It is well settled that the expression ‘sufficient cause’ is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bonafide is imputable to the appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence.”

10]    Condonation of delay is a remedy where a meritorious case should be heard after providing a sufficient cause to the Court by the applicant seeking condonation of delay when the prescribed period has ended. The court must be satisfied that the delay is caused due to a genuine reason. It is sufficiency of the cause which counts and not length of delay. Expression "sufficient cause" should receive a liberal construction and should be considered with pragmatism in justice oriented approach rather than technical detection of sufficient cause for explaining every day's delay. In the instant case, the appellant has a rational reason for the delay, which has caused on account of procedure involved in obtaining government permission from higher authorities for filing the appeal.

11]    The test laid down by Hon’ble Supreme Court in M/s GMG Engineering Industries & Ors. Vs. M/s ISSA Green Power Solution & Ors. (supra) is to see, whether the appellant had acted with due diligence. In our considered opinion, the appellant being a public organization has acted with due diligence. Therefore, miscellaneous application bearing No.465 of 2023 is allowed. The delay in filing the present appeal is condoned.

12]    Now coming to the question as to whether the respondent is a consumer under Consumer Protection Act, 2019, it may be stated here that there is nothing on the record that the respondent 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 price thereof. The respondent in his complaint specifically mentioned that he was interested in having a residential house for himself and his family use. Not only this, since the respondent has also mentioned in his written arguments filed in appeal that since he hails from Bareta, a town nearby the project of the appellant at Budhlada, as such, he purchased the said plot for residential purpose for his family use, therefore, in our considered view, the respondent is very much a consumer qua the appellant under the Consumer Protection Act, 2019. It may be stated here that in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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 Hon’ble National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only as above, 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 Hon’ble 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 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 respondent, thus, falls within the definition of a ‘consumer’, as defined under the Act. Such a contention raised by the appellant, therefore, being devoid of merit, is rejected. 

13]              Now coming to the next question as to whether the District Commission was having the territorial jurisdiction to entertain and adjudicate the complaint under Section 34(2)(d) of Consumer Protection Act, 2019, it may be stated here that it is the specific case of the respondent that since the respondent is a practicing Advocate at Punjab and Haryana High Court at Chandigarh and is working for gain at Chandigarh, therefore, this Commission had the territorial jurisdiction. It may be stated here that the complaint was filed under Consumer Protection Act, 2019, as per Section 47(4)(d) whereof, a complaint can be instituted before the State Commission within the limits of whose jurisdiction, the complainant resides or personally works for gain. In the instant case, the respondent/complainant is a practicing Advocate at Punjab and Haryana High Court at Chandigarh, which fact has not been denied at all by the appellant. The respondent is, thus, working for gain and earning his livelihood as a practicing Advocate at Punjab and Haryana High Court at Chandigarh and, as such, he is definitely a consumer qua the appellant. The contention raised in this regard by the appellant stand rejected.

14]              So far as the next question, whether the relief claimed by the respondent was available at the time of filing of earlier complaint and is    barred under Order 2 Rule 2 of Code of Civil Procedure 1908, is concerned, it may be stated here that this contention of the appellant is totally misconceived and incorrect in view of the admitted position on record that the Policy decision dated 28.06.2019, vide which, allottees were given option to withdraw from the scheme, was after the date of decision of the first complaint filed by the respondent before the State Consumer Disputes Redressal Commission, Punjab i.e. 11.03.2019. The respondent in Para 3 of the rejoinder filed by him to the written statement of the appellant before the District Commission had stated that the project stood abandoned for the reason that in pursuance to the Policy decision dated 28.06.2019 of the opposite party and due to non-completion of development works, majority of the allottees had withdrawn from the scheme as apparent from the information dated 23.07.2020, Exhibit C-12 & 12.07.2021, Exhibit C-16 obtained under RTI Act, 2005. Thus, the relief claimed by the respondent in the consumer complaint wherein the impugned order has been passed by the District Commission, was not available to him at the time of filing complaint before the Punjab State Commission, as the Policy decision dated 28.06.2019 taken by the appellant was subsequent to the decision of the consumer complaint filed before the Punjab State Commission. It may be stated here that Order II, Rule 2 (2) of the CPC postulates a situation where a plaintiff omits to sue in respect of any portion of his claim or intentionally relinquishes any portion of his claim, then, he is debarred from suing in respect of the portion so omitted or relinquished. It is also, no doubt, true that the strict provisions of Section 11 of the Civil Procedure Code are not applicable, to the complaints, before the Consumer Foras, yet, the principles analogous to res-judicata and the provisions of Order II, Rule 2 Sub-Rule-2 of the Civil Procedure Code, could be applied, as those are based on public policy. However, as stated above, the bar of Order II Rule 2 of the CPC cannot be made applicable to the case in hand, once it is established on record that relief claimed by the respondent before the District Commission wherein the impugned order has been passed, was not available to him at the time of filing previous complaint before the Punjab State Commission. No cause of action had arisen, in favour of the respondent, to seek relief as awarded vide the impugned order, at the time of filing the earlier complaint before the Punjab State Commission. Further, Regulation 26 of Consumer Protection (Consumer Commission Procedure) Regulations, 2020 provides that in all proceedings before the Consumer Commission, endeavour shall be made by the parties and their agent to avoid the use of provisions of Code of Civil Procedure, 1908 (5 of 1908); Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made thereunder. It may also be stated here that the Act is dedicated, as its preamble highlights, to provide speedy, inexpensive and simple redressal to consumer disputes. Further, the Act provides for the cases to be tried summarily and with a view to meet this objective, the legislature, very consciously made only certain identified provisions of the CPC applicable to the proceedings under the Act. Therefore, the contention raised by the appellant with regard to the applicability of the provisions of Order II rule 2 of CPC to the instant case stands rejected.

15]              Now coming to the next question as to whether award of interest @10% by the District Commission on the amount ordered to be refunded alongwith compensation and litigation costs is justified, it may be stated here that now the Hon’ble National Commission is awarding interest @9% p.a. and in some cases i.e. M/S. MANOHAR INFRASTRUCTURE AND CONSTRUCTIONS PVT. LTD. & ANR. Vs. ANKIT JAIN, First Appeal No.185 of 2020 decided on 17.05.2022; MANOHAR INFRASTRUCTURE & CONSTRUCTIONS PVT. LTD. Vs. KAPIL DUA, First Appeal No.1516 of 2018 decided on 19.12.2022 and M/S. MANOHAR INFRASTRUCTURE & ORS. VS. JORAWER SINGH MANN, First Appeal No.1800 of 2017 decided on 20.03.2023, the Hon’ble National Commission has reduced the interest awarded by this Commission from 15%, 12% & 13% to 9%. Even, the Hon’ble Supreme Court of India in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, Civil Appeal No.6044 of 2019, decided on 7.4.2022, held, inter-alia, that “…….At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the Consumer for enhancement of interest.” Therefore, in our considered view, since the respondent has adequately been compensated by the District Commission in terms of compensation and litigation expenses, therefore, the interest awarded @10% p.a. by the District Commission is on the higher side and it should have been at the rate of 9% p.a. as awarded by Hon’ble National Commission in the aforementioned case. To this extent only, the impugned order needs to be modified.

16]              For the reasons recorded above, the appeal is partly accepted and the impugned order of the District Commission is modified to the extent of reducing the rate of interest from 10% p.a. to 9% p.a. in the manner that the appellant/opposite party is now directed as under:-

(i)       to refund to the respondent/complainant an amount of Rs.15,20,140/- alongwith interest @9% p.a. (instead of 10% p.a.) from the respective dates of deposit till its payment;

(ii)      to pay an amount of Rs.50,000/- to the respondent/ complainant towards compensation for causing him immense mental agony and harassment, alongwith litigation costs of Rs.20,000/-.

(iii)     This order shall be complied with by the appellant/opposite party within a period of 30 days from the date of receipt of its certified copy, failing which, it (appellant/opposite party) shall be liable to pay additional cost of Rs.35,000/- apart from the above awarded amount.

17]              Certified copy of this order be sent to the parties free of charge.

18]              File be consigned to the Record Room after completion.

Pronounced.

29.08.2023.

(RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

 

(RAJESH K. ARYA)

MEMBER

 

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