Chandigarh

StateCommission

CC/295/2017

Mrs. Anjani Dass - Complainant(s)

Versus

DLF Universal Ltd. - Opp.Party(s)

Munish Goel, Adv.

19 Jul 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	295  of 2017
Date of Institution	:	06.04.2017
Date of Decision	:	19.07.2017

 

1. Mrs.Anjani Dass w/o Dr.Ramesh Manmohan Dass, H.No.2194, Sector 15-C, Chandigarh.
2. Rajeev Chhibber S/o Bal Krishan Chhiber, H.No.2194, Sector 15-C, Chandigarh.

…… Complainants

V e r s u s

 

1. DLF Universal Limited, Regd. Office: Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon, through its Managing Director/Director/Partner/Authorized Signatory.
2. DLF Universal Limited, SCO No.190-191-192, Sector 8-C, Chandigarh, through its Managing Director/Director/ Regional Manager/Authorized Signatory.               

....Opposite Parties

Argued by:-        Sh.Munish Goel, Advocate for the complainants.

                        Ms.Ekta Jhanji, Sh.Parveen Jain and Ms.Sapna Seth,                       Advocates for the opposite parties.

 

 ====================================================

 

Complaint case No.	:	205 of 2017
Date of Institution	:	08.03.2017
Date of Decision	:	19.07.2017

 

Shamsher Singh Sandhu, S/o Sh.Sarabjit Singh Sandhu, R/o House No.233, Sector 18-A, Chandigarh.

…… Complainant

V e r s u s

 

1. DLF Universal Limited, Plot No.2, Rajiv Gandhi Technology Park, Tower-D, Ground Floor, Chandigarh.
2. Ms.Deep Kamal Gill, Head Customer Relationship Management, O/o  DLF Universal Limited, Plot No.2, Rajiv Gandhi Technology Park, Tower-D, Ground Floor, Chandigarh.

....Opposite Parties

Argued by:-   Sh.Hatinder  Singh Lalli, Advocate for the complainants.

                    Ms.Ekta Jhanji, Sh.Parveen Jain and Ms.Sapna Seth,                       Advocates for the opposite parties.

                 

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

 

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we propose to dispose of the aforesaid two consumer complaints. Arguments were heard in common, in both the cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In both the complaints, the complainants are the original allottees. Refund of the deposited amount, alongwith interest, compensation etc. has been claimed by the complainant(s), in these complaints. At the time of arguments, on 10.07.2017, it was agreed between Counsel for the contesting parties, that, in view of above, these two complaints can be disposed of, by passing a consolidated order.

2.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.295 of 2017 titled as Mrs.Anjani Dass and another Vs. DLF Universal Limited and another. The complainants are sister and brother respectively. In this complaint, it is stated by complainant no.1. that her husband is a Doctor by profession. Both, complainant no.1 and her husband were living in East Africa (Tanzania), whereof 1990. Husband of complainant no.1 is a citizen of Tanzania, where he was working in a Govt. Hospital as a Doctor. He was to retire on 16.08.2013. Thereafter, his period of assignment was extended by three years. Complainant no.1 and her husband decided to settle in India, near Chandigarh, as complainant no.2 (brother of complainant no.1) was residing at Chandigarh, alongwith his family. Complainant no.1 and her husband thought of purchasing a shop to setup a clinic at Chandigarh, to earn their livelihood, by way of self-employment.  Both of them permanently shifted to India, in the year 2016. To say so, copies of passport of complainant no.1 and her husband, are placed on record as Annexures C-6 and C-7.
3.         It is further stated that complainant no.2 was working with HDFC Bank, whereof 1997. Since, he was also to retire in the near future, as such, he was also thinking of doing some post retirement job, to earn his livelihood by way of self-employment and for the said purpose, he wanted to setup a finance consultancy. It was further stated that complainant no.2 was eligible to do so, as he was highly qualified to handle the financial matters. Taking note of their limited financial resources, the complainants decided to purchase a shop, near to Chandigarh, to setup their practice, aforesaid, to earn their livelihood, by way of self-employment, in the manner explained above. It was decided by them that they can construct two-story building on a commercial plot and both of them will start their practice in their respective areas, as per their requirement.
4.         Allured by rosy advertisements and tall claims made by the opposite parties, the complainants opted to purchase one commercial plot, measuring 92.9 square meters. For the said purpose, they paid an amount of Rs.12 lacs to the opposite parties on 10.02.2014.  Vide letter dated 19.02.2014 Annexure C-13, the opposite parties allotted them a plot bearing no.HPA-R3-SCO-032, in Hyde Park Arcade, Hyde Park Estate, New Chandigarh, Mullanpur, Punjab. Total price of the plot was fixed at Rs.87,19,222.42ps. The complainants paid an amount of Rs.82,83,709.22ps. to the opposite parties towards price of the said plot, in the following manner:-

 

 

Sr.No.	Amount	Date
	1200000.00	17.02.2014
	543844.48	16.04.2014
	1307883.36	17.06.2014
	1307883.36	16.08.2014
	850000.00	17.10.2014
	239902.81	17.10.2014
	1089902.81	18.12.2014
	250000.00	16.02.2015
	450000.00	16.02.2015
	390350.71	16.02.2015
	353941.69	19.05.2015
	300000.00	19.05.2015
	8283709.22

 

 

5.         Buyer’s Agreement Annexure C-15, was signed between the parties on 23.04.2014. As per Clause 11 (a) of the Agreement, possession of the plot, in question, was to be delivered within a period of 15 (fifteen) months from the date of moving the application dated 17.02.2014 i.e. on or before 16.05.2015. Relevant Clause 11 (a) of the Agreement reads thus: -

“The Company based on its present plans and estimates and subject to all just exceptions, endeavors to offer possession of the Said Commercial Plot within a period of 15 (fifteen) months from the date of the Application unless there shall be delay or failure due to reasons mentioned in Clause 11 (b) and 11 (c) or due to failure of the Allottee to pay in time the Total Price and other charges, Taxes and Cesses, deposits, securities etc. and dues/payments or any failure on the part of the Allottee to abide by all or any of the terms and conditions of this Agreement.”

 

6.         In the Agreement, it was further stipulated that, in case, possession of the plot is not delivered by the stipulated date, the opposite parties shall pay compensation @Rs.100 per square meter, per month, for the period of delay. Admittedly, even as on today, possession of the plot has not yet been offered to the complainants by the opposite parties. By 19.05.2015, the complainant had paid an amount of Rs.82,83,709.22ps. On making above payment, they started making requests for delivery of possession of the plot, however, nothing was done by the opposite parties. For the said purpose, an email was also written on 19.10.2015 to the opposite parties, which was not replied. Another email was sent on 03.11.2015, which was replied on 03.11.2015 itself, stating that offer of possession is likely to be made in first half of the calendar year (2016). The complainants then visited the site and were surprised to see that there was no development. Noting the same, a letter Annexure C-38 was written on 09.12.2015, seeking refund of the amount paid, with interest. It was not done. Noting that necessary sanctions and approvals were not available with the opposite parties and also completion certificate after making development at the project, had also not yet been issued in  their favour, this complaint has been filed by the complainants, seeking refund of amount paid, alongwith interest, compensation etc.
7.         Notice was served upon the opposite parties. However, before filing written reply and evidence, on 11.05.2017, an application was moved by the opposite parties, under Sections 5 and 8 of the Arbitration and Conciliation Act, 1996, for referring the matter to an Arbitrator. The said application was disposed of, by this Commission, vide order dated 15.05.2017, holding that the question qua arbitration, will be considered at the time of final arguments in the main case.
8.         Thereafter, the opposite parties filed their joint written reply on 30.05.2017, wherein factual matrix of the case is not controverted. However, an attempt was made to defeat claim raised by the complainants, on technical objections. It was stated that neither there was any deficiency in rendering service, on the part of the opposite parties, nor they had indulged into unfair trade practice. It was specifically stated that the complainants had purchased the shop in a commercial complex, and, as such, they would not fall within the definition of a consumer, in terms of Section 2(h) of the Act. It was averred that since the purchase, in question, has been made for commercial purpose, as such, no relief can be granted to the complainants. This plea was also reiterated at the time of arguments, by Counsel for the opposite parties, by placing reliance on a judgment passed in a case titled as Balbir Singh Randhawa Vs. DLF Universal Limited and another, consumer complaint no.402 of 2016 decided on 18.03.2016, by the National Commission, against which appeal filed was also dismissed by the Apex Court, on 05.07.2016. It was pleaded that by filing this complaint, the complainants are seeking amendment of terms and conditions of the agreement, which cannot be agitated before this Commission. It was further stated that in the face of arbitration clause no.52 contained in the Agreement, dispute, if any, was required to be referred to an Arbitrator, as such, the consumer complaint was not maintainable. Territorial jurisdiction of this Commission was challenged. It was further pleaded that since the proceedings before the Consumer Foras are summary, in nature, this Commission is not competent to adjudicate this complaint. In other words, it is said that only a Civil Court could adjudicate the dispute, in question. Complete details of the project were given to show to this Commission that the project is of vast magnitude and that was why it took time to complete it. It was stated that 897 plots stood developed. 298 built-up units have also been constructed.

                It was admitted that the complainants had purchased the unit, in question, from the opposite parties. Execution of the Agreement was also admitted. Payments made are also not disputed. It was stated that delay in offer of possession of the plot took place on account of non-grant of requisite permissions by the Government Authorities. It was further stated that after receiving the said permissions, possession of the plot will be offered soon to the complainants and that too, after providing all the basic amenities. It was pleaded that the opposite parties only endeavored to offer possession of the said plot, within in a total period of 15 months and, as such, time was not the essence of contract. It was averred that delay took place on account of force majeure circumstances. Even partial completion certificate, in respect of the project, in question, has been obtained by the opposite parties, from the Competent Authorities, on 10.09.2014. It was further stated that qua many plots, possession already stood delivered. However, at the time of arguments, it was hesitantly admitted by Counsel for the opposite parties that, in the present case, possession of the plot has not yet been offered.

                At the same time, it was submitted that possession of the plot, in connected complaint bearing no. 205 of 2017, was offered on 06.12.2016. By making reference to the above fact, it was stated that the said connected complaint bearing no. 205 of 2017, deserves to be dismissed. 

                It was further stated that, in case, the complainants still wanted refund of the amount deposited; the same would amount to surrender of the unit, and would attract forfeiture charges. It was averred that the complainants defaulted in making payment, towards the said plot, as a result whereof, they were bound to pay delayed payment interest of Rs.985.59ps. It was further pleaded that the complaint filed is time barred. The remaining averments were denied, being wrong. It is prayed that the complaints having no substance, be dismissed.

9.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite parties.
10.         The parties led evidence in support of their cases.
11.         Counsel for the respective parties, addressed arguments in tune with the averments, contained in the complaint and their written statement.
12.         At the time of arguments, it was also argued by Counsel for the opposite parties that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication.

                We are not going to agree with the argument raised. This Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126 has already elaborately dealt with this question, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Furthermore, under similar circumstances, the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016, held as under:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-

“We are unable to persuade ourselves to agree with the Learned Counsel.  In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon’ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon’ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors.  (Supra) still holds good, no fault can be found with the view taken by the State Commission. 

Consequently, the Appeal fails and is dismissed accordingly.”

                Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

                In view of the above, argument raised by Counsel for the opposite parties, in this regard, being devoid of merit is rejected.

13.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that the Agreement was executed between the parties at Chandigarh. Not only this, perusal of payment receipts placed on record by the opposite parties only, reveal that the same were issued by their Chandigarh Office, as it bore the address of the Company as “SCO 190-191-192, Sector 8-C, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

14.         The next question, that falls for consideration, is, as to whether, the present consumer complaint was not maintainable, and only a Civil Court can decide the case. It may be stated here, that it is a very simple case of non-delivery of possession of the plot to the complainants, by the opposite parties, despite receiving substantial amount, by the stipulated date. The complainants hired the services of the opposite parties, for purchasing the plot, in the manner, referred to above. According to Clause 11 (a) of the Agreement, the opposite parties were bound to deliver possession of the plot, in question, to the complainants, within a period of 15 months, from moving the application dated 17.02.2014 i.e. on or before 16.05.2015. However, by not doing so, the opposite parties breached the terms and conditions of the Agreement.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 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of 1986 Act, can also be availed of by them, as they fall within the definition of consumer. 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.
15.         It is not in dispute that the plot, in question, was purchased by the complainants, by moving an application on 17.02.2014. Vide letter dated 19.02.2014, they were allotted the plot in question. Agreement was signed between the parties on 23.04.2014. As per Clause 11 (a) of the Agreement, possession of the plot, in question, was to be delivered within a period of 15 (fifteen) months from the date of moving the Application dated 17.02.2014 i.e. on or before 16.05.2015. The complainants continued to make payment, as and when demanded and by the end of 19.05.2015, they had paid an amount of Rs.82,83,709.22ps. towards price of the plot, fixed at Rs.87,19,222.42ps. When possession of the plot was not delivered, as agreed, the complainants started writing emails, and in reply, it was promised that possession is likely to be delivered in the mid of 2016. At the time of arguments, it was admitted by Counsel for the opposite parties that even as on today, possession of the plot, in the present case, has not been offered to the complainants. However, in the connected case bearing no. 205 of 2017, possession was offered only on 06.12.2016 i.e. after a delay of about three years. The fact remains that, in both the complaints, referred to above, possession of the plots was not offered and delivered to the complainants, by the promised date.

                Now, the question, arises, as to whether, the complainants, were legally entitled to seek refund of the amount paid, under the circumstances, referred to above. The answer is in the affirmative. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

                Under these circumstances, the complainants in both the complaints, are held entitled to get refund of amount deposited by them. In view of above facts of the cases, the opposite parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

16.         Reliance was placed by the opposite parties on partial completion certificate dated 10.09.2014 Annexure R-2, to contend that basic amenities are complete at the site. First of all, it may be stated here that, it was only a partial completion certificate and not a final completion certificate in respect of the said project. Further, perusal of partial completion certificate reveals that it was issued on 10.09.2014, but, at the same time, it is also not clarified by  the opposite parties, as to what stopped them, thereafter, to offer possession of the plot to the complainants, by the stipulated date i.e. by 16.05.2015, once they had obtained the said certificate on 10.09.2014, in case, they were ready, to do so. Besides this, it is clearly mentioned in the said certificate that final completion certificate is yet to be issued by the Competent Authority. No document has been brought on record, to prove that the conditions imposed upon the opposite parties, in the partial completion certificate have been complied with, as a result whereof, they have been issued final completion certificate. In the absence of final completion certificate, having been issued to the opposite parties, it is open to the complainants, to say no to the possession, even if it is offered to them (In the connected case, offer of possession was allegedly sent, after a delay of about three years’ i.e. on 06.12.2016 and in the present case not yet offered). The opposite parties have failed to produce on record, anything including any judgment of the Appellate Fora, which says that a builder can offer or deliver possession of a unit, even on obtaining partial completion certificate also and obtaining the final completion certificate is not mandatory. Thus, no shelter can be taken by the opposite parties, under the partial completion certificate dated 10.09.2014, in any manner.
17.         It has vehemently been contended by Counsel for the opposite parties that the dispute is qua a plot, purchased by the complainants in a commercial complex, launched by the opposite parties and there is nothing on record to prove that the said plot was purchased by the complainants to earn their livelihood, through self-employment, as such, they would not fall within the definition of consumer, in terms of Section 2 (1) (d) and (h) of the Act.

                We are not going to agree with the contention raised. There is nothing on record to show that the shop was purchased by the complainants to earn profits, in future, by selling it at a higher premium. No evidence has been produced on record by the opposite parties to prove that the complainants are the property dealers and deal in the sale and purchase of property, on regular basis, and as such, the plot has been purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Similar controversy, as to whether the complainant(s) on purchase of a shop/unit would fall within the definition of a consumer or not, came up for consideration, before this Commission, in a case titled as M/s Chandigarh Overseas Private Limited Vs. Easow Mathew, First Appeal No.284 of 2015, decided on 25.01.2016. Taking note of similar contentions, this Commission, gave findings as under:-

6. On interpreting provisions of application form for allotment/agreements, and other documents on record, the Forum came to the conclusion that construction at the project, was to be completed by 18.01.2010, however, it was not done and possession of the unit, was not delivered, as per promise made by the opposite parties. Defence taken by the appellant that the respondent was not a consumer was righty rejected, by observing as under:-

“As we have already observed, the complainant has specifically pleaded in his complaint that he wanted to settle a business for himself for earning his livelihood and to become an independent business owner, he agreed to purchase the said unit of 100 sq. ft. in Design Studio No.12.  The complainant has also pleaded that he is a consumer as per the provisions of the Consumer Protection Act as the said unit was purchased by him for earning his livelihood.  The allegations of the complainant are supported by his own affidavit.  The OPs have not produced any such evidence that the complainant is a property dealer dealing in the sale and purchase of real estate. The total area of the unit purchased by the complainant from the OPs is only 100 sq. ft. which is for small investors.  Since the complainant wanted to settle a business for himself for earning his livelihood, it cannot be inferred that the said unit was purchased by him with the sole motive of earning profits.  As far as the contention of the learned counsel for the OPs that the complainant is not qualified to run his unit in the project is concerned, it was the duty of the OPs to verify the same before accepting the application for allotment of the unit whether he was eligible under “Small Investor Scheme” or not.  At this stage, such an objection is not tenable.  In Arun Mandhana Vs. Chandigarh Overseas Pvt. Ltd. & Anr., Consumer Complaint No.19 of 2012 decided on 12.10.2012 and Ruchira V. Arora Vs. M/s Chandigarh Overseas Private Limited, First Appeal No.8 of 2013 decided on 1.3.2013, our own Hon’ble State Commission in somewhat similar circumstances in the complaints against the same very OPs held that the size of the studio was small and the sale price of the said studio was also not too high, therefore, it was established that the complainant never intended to run commercial activity in the studio on a large scale with a view to earn huge profits and he fell within the definition of consumer.”

7.         Contention of Counsel for the appellant that the respondent was not a consumer also needs to be rejected, taking note of ratio of the judgement of the National Commission, titled as Kavit Ahuja Vs. Shipra Estate Limited and Jai Krishna Estate Developers Private Limited, Consumer Complaint No.137 of 2010, decided on 12.02.2015. Similar objection was raised, in that case. The National Commission while interpreting the provisions of Section 2 (1) (d) of the Act, held as under:-

“Going by the Dictionary meaning of the expression ‘Commerce’ as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged.  In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services.  It would ordinarily include activities such as manufacturing, trading or rendering services.  In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses.  If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose.  A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment.  He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc.  Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him.  That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).

Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.

8.         By noting ratio of the judgment of the Hon`ble Supreme Court of India, titled as Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, it was stated by the National Commission in that case that the word commercial purpose is a question of fact to be decided in the facts of each case. It is not value of the goods, which matters, but the purpose, for which the goods bought are put to, needs to be noted. Same would be clearly applicable to, for hiring or availing services. In the present case,  application to purchase a unit, was moved in the year 2006. Out of Rs.5 lacs, an amount of Rs.4,75,000/- stood paid, for purchase of the built-up unit. Rest of the amount was to be paid, at the time of possession of the unit. In the year 2009, when completion of the project was not visible, under above circumstances, when buyback offer was made by the appellant on 22.06.2009, may be on account of frustration in not getting possession of the unit, in time, it was accepted by the respondent, on 04.08.2009 vide letter Annexure C-7. On account of that act, the respondent cannot be excluded from the definition of a consumer. Even otherwise, as has been observed by the National Commission, in the case of Kavit Ahuja`s case (supra), that surplus funds can be invested, in such a manner, in purchasing property/unit(s), to earn better returns, in future and unless there is evidence on record that the purchaser thereof, was indulging into sale and purchase of unit(s), on regular basis, he would fall within the definition of a consumer.”

 

18.         In the instant case, the complainants have specifically stated that the said plot was purchased by them, to earn their livelihood by way of self-employment, in the manner, referred to above. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Even otherwise, the total area of the plot purchased by the complainants from the opposite parties is only 92.9 square meters and in no way, it can be imagined that the said plot was to be used for earning huge profits, by engaging number of employees therein. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. The complainants thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Counsel for the  opposite parties, being devoid of merit, is rejected.  
19.         Reliance placed by Counsel for the opposite parties on Balbir Singh Randhawa  case (supra) is of no help to them. In the said case, the unit, in  question, was also situated in this very complex. However, relief was declined to the complainant by noting that the complainant therein was residing at Dubai and earning livelihood there. On a query raised by the National Commission, the complainant therein failed to give any time frame, within which, he was shifting to India and engage himself in some avocation to earn his livelihood, by way of self employment. In the present case, position is altogether different. It is specifically stated by complainant no.1 that her husband is a Doctor by profession. Both, complainant no.1 and her husband were living in East Africa (Tanzania), whereof the year 1990. Husband of complainant no.1 is a citizen of Tanzania and was working in a Govt. Hospital as Doctor. He was to retire on 16.08.2013. Complainant no.1 and her husband decided to settle in India, near Chandigarh, as complainant no.2 (brother of complainant no.1) was residing at Chandigarh alongwith his family. Complainant no.1 and her husband thought of purchasing a shop to setup a clinic at Chandigarh to earn their livelihood by way of self-employment.  Both of them permanently shifted to India, in the year 2016. It was further stated that complainant no.2 was working with HDFC Bank, whereof 1997. After retirement, he was also thinking of doing some post retirement job, to earn his livelihood by way of self-employment and for the said purpose, he wanted to setup finance consultancy. As such, it was decided by them that they can construct two-story building and they will start their practice in their respective areas, as per their requirement. In the connected case bearing no. 205 of 2017 also, position is the same. In that case also, the complainant being a qualified person, in financial matters, planned to start his own business, by way of self-employment, after seeking retirement from his present service.  In view of above, it can safely be said that the complainants in both the complaints fall within the definition of consumer.
20.         Now coming to the plea taken by the opposite parties that time was not the essence of contract, it may be stated here that since, it has already been held that the opposite parties, were bound to deliver possession of the unit, within a period of 15 months, from moving application dated 17.02.2014 i.e. on or before 16.05.2015, as such, time was certainly the essence of contract. In view of above, there is no substance in the arguments raised by Counsel for the opposite parties that the opposite parties only endeavored to offer possession of the said unit, within in a total period of 15 months and, as such, time was not the essence of contract.  

                The opposite parties also cannot evade their liability, merely by saying that since the word proposed/tentative was mentioned in the Agreement, for delivery of possession of the plot, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the plots/unit(s) to the allottees/purchasers thereof. It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/s Sahajan and Hi Tech Construction Pvt. Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

                In view of above, the plea taken by Counsel for opposite parties, at the time of arguments, as also in the written version, in this regard also stands rejected.

21.         As far as the plea taken by the opposite parties to the effect that delay occurred on account of force majeure circumstances having been encountered by them, as there was delay on the part of the Govt. Authorities, in granting requisite permissions, is concerned, it may be stated here that such a plea is without any documentary evidence on record. Not even a single letter has been placed on record, to prove that the opposite parties, at any point of time, wrote to the Authorities concerned that they (Govt. Authorities) are taking their own time i.e. delaying the process, in granting requisite permissions, in respect of the project, in question, resulting into delay in delivery of possession of the units, in the said project. Such a similar plea has been negated by the National Commission, in a case titled as Vikash Arora & Anr. Vs. M/S. Bengal Unitech Universal Infrastructure Private Limited, Consumer Case No. 654 of 2015, decided on 09^th Jan 2017. Relevant part of the said order reads thus:-

“The complaint has been resisted by the OP which has inter-alia alleged that the delay in construction is attributable to the delay in obtaining the statutory approvals pertaining to road, electricity, water, sewerage etc. beyond the control of the OP.  It is further alleged that construction is in progress and the OP remains committed to deliver possession of the flats to the complainants. 

The main question which arises for consideration in this complaint is as to whether the construction of the flat agreed to be sold to the complainants has been delayed on account of reasons beyond the control of the OP.  It has been vaguely alleged in the written version that there was delay in obtaining approvals and permissions required for infrastructural work, without disclosing when the approvals and permissions were applied and when they were granted.  The written version of the OP does not show what is the time normally taken for grant of such approvals and permissions and what was the time actually taken in this case.  The reply does not indicate the objections if any taken by the statutory authorities to the applications of the OP seeking the requisite approvals and permissions.  If the delay occurred on account of some defect or deficiency on the part of the OP itself, the statutory authorities cannot be blamed for the said delay.”

                The principle of law laid down in the aforesaid case is fully applicable to be present case. As such, the plea taken by the opposite parties, in this regard, also deserves rejection.

22.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. It may be stated here that since, in the present case, it is an admitted fact that offer of possession of the unit, in question, could not be made, by the date of filing this complaint or even till date, and at the same time, amount paid has also not been refunded to the complainants, as such, there is continuing cause of action, in favour of the complainants, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC).

                At the same time, since in connected complaint bearing no. 205 of 2017 also, it is an admitted fact that possession of the plot, therein was offered only on 06.12.2016, i.e. after a delay of about three years of the stipulated date, which has been challenged by the complainant, as such, if two years are counted from 06.12.2016, the complaint filed is well within limitation. Under these circumstances, it is held that the both the complaints are not at all barred by limitation. The submission of Counsel for  the opposite parties in this regard, being devoid of merit, must fail, and the same stands rejected.

23.         As far as the plea taken by the opposite parties, regarding forfeiture of earnest money is concerned, the same stands rejected, because it is not their (opposite parties) case, that they were ready with possession of the plots, to be delivered to the complainants, by the stipulated date but the complainants wanted to rescind the contract, on account of some unavoidable circumstances/financial constraints or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the opposite parties, only in those circumstances, it would have been held that since the complainants are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per law. In this view of the matter, the plea taken by the opposite parties, in this regard, has no legs to stand and is accordingly rejected.
24.         It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainants. An amount of Rs.82,83,709.22ps. was paid by the complainants, 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 (@18% p.a.) as per Clause 36 (a) of the Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014. In view of above, the complainants, in both the complaints, are certainly entitled to get refund of the amount deposited by them, alongwith interest @15% p.a., from the respective dates of deposits (less than the rate of interest charged by  the opposite parties, in case of delayed payment i.e. 18% p.a., as per Clause  36 (a) of the Agreement), till realization.
25.         No other point, was urged, by Counsel for the parties, in both the complaints.
26.         For the reasons recorded above, both the complaints are partly accepted, with costs, in the following manner:-.

Consumer complaint bearing no.295 of 2017 titled as Mrs.Anjani Dass and another Vs. DLF Universal Limited and another. The opposite parties are jointly and severally directed as under:-

1. To refund the amount of   Rs.82,83,709.22ps. to  the   complainants, alongwith interest @15% p.a. from the respective  dates  of  deposits onwards.

 

2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the  complainants, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.55,000/-, to the  complainants.

 

4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a. instead of @15%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

Consumer complaint bearing no. 205 of 2017 titled as Shamsher Singh Sandhu Vs. DLF Universal Limited and another. The opposite parties are jointly and severally directed as under:-

1. To refund the amount of   Rs.79,13,033/-, to  the   complainant, alongwith interest @15% p.a. from the respective  dates  of  deposits onwards.

 

2. To pay compensation, in the sum of Rs.2 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.55,000/-, to the   complainant.

 

4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a. instead of @15%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

27.         However, it is made clear that if the complainants, in both the complaints, have availed loan from any Bank/Financial Institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
28.         Certified copy of this order be placed in the connected complaint file.
29.         Certified Copies of this order be sent to the parties, free of charge.
30.         The file be consigned to Record Room, after completion.

Pronounced.

19.07.2017

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.