Chandigarh

StateCommission

CC/235/2015

Sh. Aditya Sharma - Complainant(s)

Versus

DLF Universal Limited - Opp.Party(s)

Atul Aggarwal, Adv.

09 Mar 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	235 of 2015
Date of Institution	:	07.10.2015
Date of Decision	:	09.03.2016

 

Sh.Aditya Sharma son of Sh.C.S. Sharma, resident of H.No.2204, Sector 22-C, Chandigarh.

……Complainant

V e r s u s

1. DLF Universal Limited, having its registered office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase I, Gurgaon – 122002, through its Managing Director/Authorized Representative.
2. DLF Universal Limited, Shop No.101-102, DLF City Centre, IT Park, Kishangarh, Chandigarh – 160101, through its Managing Director/Authorized Representative.

              .... Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by: Sh.Atul Aggarwal, Advocate for the complainant.

                  Ms.Ekta Jhanji, Advocate for the Opposite Parties.

       

PER MRS. PADMA PANDEY, MEMBER

            The facts, in brief, are that the complainant, for his residential purpose, purchased a plot bearing no.HPE-R2-E313, in resale, from Sh.Lalit Bansal and Mr.Vivek Goyal, in the project of the opposite parties, launched by them, under the name and style of “Hyde Park Estate”, New Chandigarh, Mullanpur, basic sale price whereof, was Rs.89,24,934.72Ps. plus External Development Charges to the tune of Rs.4,80,222.24Ps, towards and Rs.1,74,998.72Ps, towards Maintenance Security. After discount of Rs.8,03,244/-, on account of down payment rebate, in all, the allottee was required to pay total sale consideration, to the tune of Rs.87,76,911.68Ps. Schedule of payment indicating the said amounts, is at page 70 of the file, forming part of the Plot Buyer’s Agreement.

2.       The amount stood paid by Sh.Lalit Bansal and Mr.Vivek Goyal, in respect of the plot, in question, was repaid by the complainant. As such, on 29.05.2013, the said plot was transferred in the name of the complainant, by the opposite parties. It was assured by representative of the opposite parties that, on completion of all the basic amenities, possession of the plot would be delivered within a period of two years, from the date of execution of the Plot Buyer’s Agreement dated 25.07.2012 i.e. on or before 24.07.2014. Against the total sale consideration of Rs.87,76,911.68Ps., the complainant  made payment of Rs.92,95,561/-, however, despite that possession of the plot was not delivered to him, by the stipulated date, or even by the date of filing this complaint. The complainant visited the site, where the plot was carved and was surprised to see that there was no development. Even basic amenities were not in existence, at the site. On the other hand, in the absence of development work and basic amenities at the site, the opposite parties, offered paper possession, vide letter dated 11.11.2014 Annexure C-9, in respect of the unit, in question. The complainant approached the opposite parties, and raised issues, with regard to issuance of paper possession, in the absence of development work and non-provisions of basic amenities at the site but no satisfactory reply was given. Left with no alternative, the complainant served legal notice dated 30.03.2015 Annexure C-7, followed by another legal notice dated 04.09.2015 Annexure C-8 upon the opposite parties, wherein, he clearly intimated them that since there was no development at the site and basic amenities are also not in existence there, and, on the other hand, the issues raised by him, were not redressed, as such, the amount deposited by him be refunded alongwith interest, but to no avail.
3.       It was stated that the aforesaid acts of the opposite parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the opposite parties, to refund the amount of Rs.92,95,561/-, alongwith interest, compensation and litigation expenses.
4.       Upon notice, joint written reply was filed by the opposite parties, wherein, it was pleaded that the complainant did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act. It was further pleaded that since the complainant sought enforcement of the Agreement, in respect of immoveable property, as such, the matter could only be decided by a Civil Court. It was further pleaded that since an arbitration Clause was incorporated, in Agreement, disputes could only be adjudicated upon by the Arbitrator. Purchase of plot, by the complainant, in the manner, referred to above, was admitted. It was not disputed that as per Clause 32 of the Agreement, possession of the plot, in question, was to be delivered within 24 months, from the date of execution of the same. It was stated that possession of the plot was offered to the complainant, vide letter dated 11.11.2014 Annexure C-9. It was further stated that delay in offer of possession occurred only because of the reasons that the complainant defaulted in making payment of installments, on time, towards the said plot, despite several reminders having been sent to him. It was further stated that all the basic amenities/services to be provided at the site, as per the Agreement, were duly provided. It was further stated that as per Clauses 12, 13 and 14 of the Agreement, the allottee had only ownership right of the plot and all other facilities and amenities are specifically excluded from its scope. It was admitted that the opposite parties took some time, for execution of the Agreement. It was further stated the demand made by the opposite parties vide letter dated 11.11.2014 Annexure C-9, are legal. It was further stated that the complainant could not seek refund of the amount deposited by him. It was further stated that the opposite parties are ready to deliver possession of the plot, to the complainant and to pay compensation, for the period of delay, as per Clause No.32 of the Agreement. It was further stated, that neither there was any deficiency, in rendering service, on the part of the opposite parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5.       In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the opposite parties.
6.       The Parties led evidence, in support of their case.
7.       We have heard Counsel for the parties and, have gone through the evidence and record of the case, carefully. 
8.       At the time of arguments, Counsel for the parties reiterated the facts, mentioned above.
9.       The first question, that falls for consideration, is, as to whether, the complainant fell within the definition of  consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that a specific plea has been taken by the complainant, in his complaint in para no.7, that he purchased the said plot, for his residential purpose. On the other hand, there is nothing, on the record, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. Recently, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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. The principle of law, laid down, in Kavita Ahuja's case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the flat, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, in their  written reply, therefore, being devoid of merit, is rejected.  
10.       The next question, that falls for consideration, is, as to whether, the consumer complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the reason, that an Arbitration Clause existed, in the Agreement. It may be stated here that a similar question fell for determination, before this Commission, in a case titled as Sh.Dharampal Gupta Vs. Emaar MGF Land Limited and another, consumer complaint No.147 of 2015 decided on 13.10.2015, wherein, heavy reliance was placed by the same opposite parties therein, upon ratio of Sudarshan Vyapar Pvt. Ltd. and another's Vs. Madhusudan Guha and another (2013) 1 CALLT 546 (Calcutta HC)  and M/s S.B.P. and Co. Vs. M/s Patel Engineering Limited and another, AIR 2006 SC 450, to support above argument. In Sh.Dharampal Gupta's case (supra), further reliance was placed on a judgment rendered by the State Consumer Disputes Redressal Commission, Punjab, at Chandigarh, titled as Raj Kumar Singal Vs. M/s Puma Realtors Private Limited and another, Miscellaneous Application Nos.1226 and 1227 of 2014, in Consumer Complaint No.60 of 2014. However, by noting ratio of the judgments mentioned above and on making reference to the ratio of judgments of the Hon'ble Supreme Court of India, in Fair Air Engineers Pvt. Ltd. & Anr. Vs. N.K. Modi, III (1996) CPJ 1 (SC) = (1996 (6) SCC 385, National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy & Anr., I (2012) CPJ 1 (SC), it was firmly held that remedy provided under Section 3 of the 1986 Act is in addition to and not in derogation of the provisions of any other law. It was specifically observed that ratio of judgment passed in M/s S.B.P. and Co.'s case (supra), will not debar a Consumer Fora from entertaining a complaint, even in cases where an alternative remedy of Arbitration is provided. Similar view was taken by the National Commission, in a case titled as DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013. Vide that judgment many Revision-Petitions were decided. Feeling aggrieved against the order dated 13.05.2013, passed by the National Commission, Rosedale Developers Private Limited/Opposite Party challenged that order in the Hon'ble Supreme Court. In the case of Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), the Hon'ble Supreme Court of India, by making reference to the ratio of  judgment in the case M/s S.B.P. and Co.'s case (supra),  observed that the judgment has no bearing on the issue, as to whether in the face of an Arbitration Clause, Jurisdiction  can be exercised by a Consumer Fora or not. In the above judgment, the Supreme Court had not interpreted the provisions of 1986 Act in the light of the provisions contained in 1996 Act. It was further observed that the observation made in that judgment that Section 8 of the 1996 Act, is mandatory, cannot lead to an inference that the Consumer Fora is bound to refer to the Arbitral Tribunal. The ratio of judgment of Sh.Dharampal Gupta's case (supra), wherein the issue regarding Arbitration Clause was dealt with and clarified by this Commission, while placing reliance on various judgments, in the manner, referred therein, is fully applicable to the facts of the present case. In view of the above, it is held that the objection taken by the opposite parties, that the consumer complaint was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Agreement, being devoid of merit, and stands rejected.
11.       The next question that falls for consideration, is, as to whether, that since the complainant sought enforcement of the Agreement, in respect of the immoveable property, only a Civil Court can decide the complaint, and as such, consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the opposite parties, for purchasing the plot, in question, in the manner, referred to above. According to 32 of the  Agreement, subject to force majeure conditions and reasons, beyond the control of the opposite parties, they were to deliver physical possession of the unit, within a period of 24 months, from the date of execution of the same (Agreement). Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

12.       From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he falls within the definition of consumer, as stated above. In this view of the matter, the objection of the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
13.       The next question, that falls for consideration, is, as to whether, the opposite parties were in a position to deliver physical possession of the plot, in question, complete in all respects, by the stipulated date or by 11.11.2014, when the alleged offer of possession was made to the complainant. It may be stated here that there is nothing on the record, that possession of  plot, in question, was ready to be offered and delivered to the complainant, till the date of filing the complaint or even till date. Had complete development, in respect of the plot, taken place, to enable the complainant to start construction of house thereon, then certainly the opposite parties, being in possession of the best evidence, having engaged a number of engineers/ architects, would have placed on record, their reports, to prove that factum. They, however, failed to produce the cogent and convincing evidence, to prove that the area where the plot, in question, was carved, was fully developed, and that actual possession thereof was offered to the complainant. The mere assertion of the opposite parties, that the plot, in question, was fully developed, and the complainant was offered possession thereof, appears to be hollow. 

            Not only this, it is very significant to mention here that in a similar project, one allottee Sh.Tarun Aggarwal, had also filed a  consumer complaint bearing No.121 of 2015 on 08.06.2015 (Sh.Tarun Aggarwal Vs. DLF Universal Limited and Ors.), before this Commission, against DLF Universal Limited, which is the same builder, in the instant case. Surprisingly, in that case, a specific plea was taken by the opposite parties, to the effect that construction of project was in full swing and the same was near completion. After going through the evidence on record, and hearing arguments, the builder in that case was held to be deficient, in providing service.  In those circumstances, order qua refund of the amount deposited, alongwith interest, compensation and litigation expenses, was passed by this Commission on 21.08.2015. In the present case, it remained unexplained on the part of the opposite parties, as to how, it is possible that if, till August 2015 [(as has been admitted by them in Sh.Tarun Aggarwal's case (supra)], project was not complete, how they could offer possession to the complainant (Sh.Aditya Sharma), in the same very project, in November 2014. This clearly shows that complete development, in respect of the sector, in which the plot was allotted to the complainant, had not been done, but, on the other hand, the opposite parties issued only paper possession, vide letter dated 11.11.2014,  just to evade their liability, which act is not tenable in the eyes of law, and amounted to deficiency in rendering service and adoption of unfair trade practice.

14.       No doubt, to defeat the claim of the complainant, a stand was also taken by the opposite parties, that they were only liable to deliver possession of plot, in question, to the complainant, and as far as the provision of basic amenities is concerned, he cannot claim the same, as per the terms and conditions contained in the Agreement.  This stand of the opposite parties has no legs to stand. It may be stated here that, had only possession of plot was to be delivered to the complainant, without providing any basic amenities in the project, then why the opposite parties need 24 months, to deliver possession thereof, as per Clause 32 of the Agreement is not explained. Whether it is mentioned in the Agreement or not, the basic amenities/facilities such as roads, sewerage, drinking water, electricity, street lights, drainage,  etc. etc. are mandatory to be provided to an allottee, before delivering him possession of a plot, so that he is able to start construction work accordingly and live a smooth life. Even otherwise, it is of common knowledge, that if basic amenities such as roads, water, electricity, are not in existence at the site, how could an allottee start construction work on a plot. The complainant was not allotted a plot on an island. In Haryana State Agricultural Marketing Board vs. Bishamber Dayal Goyal and Ors., Civil Appeal No.3122 of 2006, decided on 26.03.2014, the Hon’ble Supreme Court, while placing reliance on Municipal Corporation, Chandigarh & Ors. vs. Shantikunj Investment (P) Ltd.& Ors., (2006) 4 SCC 109, held that though it was not a condition precedent but there is an obligation on the part of the Administration to provide necessary facilities such as roads, drainage, drinking water, sewerage, street lighting etc. etc., for full enjoyment of the same by allottees.

            From the photographs placed on record, by the complainant, at pages 94, 95 and 97, it is evident that laying of roads and connectivity thereof is not complete; even belting of roads have not been done; drainage/ sewerage pipes are lying open in ground;  major part of the project is still a jungle. The project still does not seem to be in a habitable condition. As stated above, no convincing cogent and convincing evidence has been placed on record, by the opposite parties, to prove that development at the site is complete and they are actually in a position to deliver legal physical possession of the plot, in question, to the complainant. The opposite parties, thus, allegedly offered paper possession of the plot, vide letter dated 11.11.2014. It is, therefore, held that no genuine offer of possession of fully developed residential plot, vide letter dated 11.11.2014 was made to the complainant.

15.       Now it is to be seen, as to whether, the complainant is entitled to get refund of the amount paid by him and also to seek compensation for mental agony and physical harassment, suffered by him, at the hands of the opposite parties, as also escalation in prices or not. It is not in dispute that as per the Agreement, possession of the plot was to be handed over to the complainant, complete in all respects, within 24 months, from the date of execution of the same. The said period came to an end on 24.07.2014.  Thereafter, no extension of time, was sought by the opposite parties, to give possession of the unit. Development at the site remained incomplete. As stated above, even till date, the basic amenities have not been provided at the site and on the other, it has been frankly mentioned by the opposite parties in their written reply that all amenities will be in place, meaning thereby that no exact date has still been given by them, for the purpose. Expectations of the complainant to construct a house on a plot purchased by him and settle comfortably therein, alongwith his family members, were shattered. Even at the time of arguments, no commitment has been made by the opposite parties, to handover legal physical possession of the unit, in near future. The opposite parties have miserably failed to discharge their liability and perform their duty, despite the fact that they had received Rs.92,95,561/-, against total sale consideration of Rs.87,76,911.68Ps., in respect of the plot, in question.  No attempt was made to deliver possession of the unit, as per the promise made by the opposite parties. The said action amounts to committing material deficiency, in providing service, on the part of the opposite parties.
16.       Otherwise also, when alleged offer of possession was made (which has been held to be paper possession), the period to deliver possession of the plot, in question, is already over. The admission of the opposite parties, in para 6 (a) of the preliminary objection to the effect that the opposite parties are willing to pay compensation, as mentioned in Clause 32 of the Agreement, for the period of delay in delivery possession of the plot, and further, in para 6 of their reply to the effect that all the amenities will be in place, in itself, is sufficient to prove the stand of the complainant, that offer sent vide letter dated 11.11.2014, is mere a paper possession and as on date, the opposite parties are not in a position to deliver possession of the plot, in question. Under these circumstances, it was justifiable for the complainant to say no to the same. It was so said by the National Consumer Disputes Redressal Commission, New Delhi in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). In the above case, possession was not delivered in time. Complaint was filed for refund of amount paid. The State Commission partly allowed it. The builder was allowed to forfeit 10% of the deposited amount, on the ground that the complainant himself rescinded the contract by asking refund of the amount, as possession of the unit had already been offered to him. The remaining amount was allowed to be returned with interest. The complainant in that case was also awarded litigation cost etc. The builder namely Emaar MGF Land Limited went in appeal, which was dismissed, wherein it was specifically observed by the National Commission, that when the promoter/builder has violated material condition in not handing over possession, in time, it is not obligatory for the purchaser to accept possession after that date. The principle of law laid in the aforesaid case, is fully applicable to the instant case. On account of that, the complainant is entitled to get refund of amount deposited by him. In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.
17.       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 an amount of Rs.92,95,561/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the opposite parties, for their own benefit. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest, for the period of delay in making payment of installments. No firm date of delivery of possession of the plot, in question, is given to the complainant.  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 said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.92,95,561/- alongwith interest @12% p.a., from the respective dates of deposits, till realization.
18.       No other point, was urged, by Counsel for the parties.     
19.       For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties jointly and severally, are directed as under:-

1. To  refund the amount of   Rs.92,95,561/- to  the complainant,  alongwith simple interest @ 12% p.a. from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant.
4.  The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made by the opposite parties, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay the amount mentioned at sr.no.(i), alongwith penal interest (simple) @15% p.a. instead of simple interest @12% p.a., from the respective dates of deposits onwards, and simple interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

20.       Certified Copies of this order be sent to the parties, free of charge.
21.       The file be consigned to Record Room, after completion

Pronounced.

09.03.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg.