STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Narendra Pal Singh s/o Gurbachan Singh r/o H.No.522, Sector 20-A, Chandigarh.

• Appellant/complainant

V e r s u s

1. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Chief Administrator.
2. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Estate Officer (IT City), Mohali, Punjab.

….Respondents/opposite parties

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1. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Chief Administrator.
2. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Estate Officer.
3. Appellants/opposite parties no.1 and 2  

V e r s u s

Narendra Pal Singh s/o Gurbachan Singh r/o H.No.522, Sector 20-A, Chandigarh.

BEFORE:- JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR.RAJESH K. ARYA, MEMBER.

PER  RAJESH  K. ARYA, MEMBER

                   The above captioned appeals have arisen out of the common order dated 02.11.2023 passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission only), whereby consumer complaint bearing no. 90 of 2021 stood partly allowed against the GMADA-appellants (FA No.54 of 2024) as under:-

“……..   In view of the above discussion, the present complaint deserves to be partly allowed and the same is accordingly partly allowed. The OPs are directed to pay compensation by way of interest @ 9 % p.a. on the entire value of the plot at the time of issuance of the LOI from 15.02.2018 till 15.06.2020 to the complainant, within 90 days from the date of receipt of its certified copy....….”

2.           The opposite parties no.1 and 2/GMADA-appellants have come up in  FA No. 54 of 2024 titled as Greater Mohali Area Development Authority and another Versus Narendra Pal Singh with a prayer to set aside the impugned. On the other hand, the complainant/appellant has come up in FA No.323 of 2023 titled as Narendra Pal Singh Versus Greater Mohali Area Development Authority and another seeking modification and enhancement of the relief awarded by the District Commission in the impugned order.
3.           The District Commission noted down the following facts of the consumer complaint:-

“……The complainant has filed the present complaint pleading therein that he purchased the plot measuring 256.66 sq. yards in Sector 83 Alpha City, the LOI dated 15.02.2017 (Annexure C-2) of which was earlier allotted to Sh.Satnam Singh s/o Sh.Resham Singh under the category of Disabled Persons/Deaf and Dumb by paying the requisite transfer fee to the OPs and the possession of which was to be delivered within one year from the date of issuance of the LOI. He also received the transfer of LOI vide letter dated 16.03.2017 on the same terms and conditions of the previous LOI(Annexure C-3).   After getting the mortgage permission, he availed the loan of Rs.32,89,202/- for land cost/construction thereupon. He was allotted plot No.1231, Sector 83A, Block B, measuring 256.66 sq. yards in Category A vide letter dated 15.06.2020 (Annexure C-5).  He paid all the due installments as per the LOI and paid total amount of Rs.49,48,038/- including tax, cess, transfer fee etc. after availing rebate of 5%.  The conveyance deed was also registered in favour of the complainant on 10.11.2020. According to the complainant, there was a delay of 2 years and 4 months 1 Day (851 days) in delivering the possession of the plot as per the terms and conditions of the LOI despite his repeated requests/visits. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to pay the interest @ 18% on the delayed period as per clause 10 of the LOI; interest on the amount i.e. actually paid by the complainant in home loan account for the delayed period only i.e. Rs.72,798/-, compensation for mental agony and physical harassment as well as litigation expense ……”

4.           Written reply filed by opposite parties no.1 and 2 was noted down by the District Commission as under:-

“….it has been stated that that the development of the area earmarked for plots of 256.66 sq. yds. Size was delayed due to reasons beyond the control of the authority as there was a delay in issuance of the Amended Environmental Clearance from the State Level Environment Impact Assessment Authority  and same was intimated to the general public by way of public notice dated 14.06.2019, published in the Tribune and upon receipt of the same on 28.03.2019, the development works of the said pocket could be undertaken by the authority and after completion of the development works at the site, numbering draw of the plots of 256.66 sq. yards size could be conducted on 20.12.2019 and consequently, the complainant was issued allotment letter vide memo dated 15.06.2020 and possession of the same was offered as per Clause 9 of the allotment letter.  It has further been stated that if between the date of transfer of LOI of the plot in favour of the complainant on 16.03.2017 till the offer of the possession of the plot to him through allotment letter, the complainant was aggrieved with the development works of the scheme, then as per Clause 27 of the allotment, he could have refused the allotment within 30 days, in which case deposited amount could have been considered to be refunded to him as per the rules. It has further been stated that the claim if any was to be filed within two years from the transfer of the LOI i.e. 16.03.2017 and beyond 16.03.2019, no such claim could be filed.  It has further stated that the matter is liable to be referred to the arbitrator as per Clause 26 of the LOI and clause 29 of the allotment letter. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, the OPs prayed for dismissal of the complaint.….”

5.           In the rejoinder filed, the complainant reiterated all the averments contained in his complaint and controverted those of the opposite parties.
6.           The contesting parties led evidence in support of their case.
7.           The District Commission after considering the rival contentions of the contesting parties and on going through the material available on record, partly allowed the consumer complaint, in the manner stated above.
8.           Hence these cross appeals.
9.           We have heard the rival contentions of the parties and have also gone through the entire record of these cases.
10.           The moot question which falls for consideration in this case is, as to whether, the appellant-Narendra Pal Singh (FA No.323 of 2023) is entitled to get any relief from this Commission, over and above the relief of compensation by way of interest @9% p.a. for the delay in delivery of possession of the plot in question awarded by the District Commission or not. First coming to the rate of interest @9% p.a. awarded by the District Commission on the entire amount paid by the appellant-Narendra Pal Singh for the period of delay, it may be stated here that the said rate of interest is in consonance with the rate of interest being awarded by the Hon’ble Apex Court followed by the Hon’ble National Commission and this Commission and as such, the said direction of the District Commission did not suffer any illegality or perversity and deserves to be upheld.
11.           It is also an admitted position on record by way of Annexure   X-1 and as admitted by the Counsels for the parties during the course of arguments that an amount of ₹26,769/- has been lying in excess with GMADA and the complainant is entitled for its refund.
12.           However, at the same time, we cannot ignore the fact that the appellant-Narendra Pal Singh would have definitely suffered a lot of mental agony and harassment, as possession of his plot was withheld by the GMADA-appellants (FA No.54 of 2024) for long time i.e. more than 2 years. One can well imagine the plight of the appellant-Narendra Pal Singh in this situation. The word ‘compensation’ is again of very wide connotation.  According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling the Consumer Foras, to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumer to claim and empowers the Consumer Foras to redress any injustice done to the complainant. The Commission under the CP Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. The Hon’ble Supreme Court in Charan Singh, Appellant Vs. Healing Touch Hospital and others, Respondents, AIR 2000 Supreme Court 3138=III (2000) CPJ 1 (SC) held that that Consumer Foras are competent enough to grant compensation, in an established case, which not only serves the purpose of recompensing the individual, but which also, at the same time, aims to bring about a qualitative change, in the attitude of the service providers. Indeed, calculation of damages depends on the facts and circumstances of each case, taking into account, all the relevant factors, on the basis of accepted legal principles, on moderation. Similar principle of law was laid down in In Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital and Another, IV (2010) CPJ 199 (N.C.), by the Hon`ble National Commission to the effect, that compensation should be commensurate with loss and injury, suffered by the consumer/Complainant. Thus, compensation on account of mental agony and physical harassment caused to the appellant-Narendra Pal Singh, due to the acts of omission and commission of the GMADA-appellants (FA No.54 of 2024), if granted, to the tune of Rs.75,000/-, shall be reasonable, adequate and fair.
13.           Similarly, the Hon’ble Supreme Court of India in a case titled as Vinod  Seth vs. Devinder Bajaj  (2010) 8 SCC 1, held that the litigation cost awarded by the Courts or Foras, should not be a punishment to the defeated party, but as a recompense to the successful party, for the expenses to which he/she had been subjected, or for whatever appeared to the Courts/Foras, to be the legal expenses incurred by the party, for prosecuting his/her suit or defence. As such, by not awarding litigation expenses to the successful litigant i.e. to appellant-Narendra Pal Singh, the District Commission fell into an error.
14.           It is, therefore, held that the appellant-Narendra Pal Singh is entitled to get compensation for mental agony and harassment over and above litigation expenses. The order impugned needs modification to this extent.
15.           As far as objection taken by the GMADA-appellants (FA No.54 of 2024) regarding arbitration clause contained in the LOI is concerned, it may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in a case titled as  Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard also stands rejected.
16.           Now coming to the objection taken by GMADA-appellants (FA No.54 of 2024) that the appellant-Narendra Pal Singh is not a consumer but an investor it may be stated here that the objection raised is not supported by any documentary evidence and, as such, the onus shifts to the GMADA-appellants (FA No.54 of 2024)  to establish that the appellant-Narendra Pal Singh has purchased the plot in question to indulge in ‘purchase and sale of units/plots’ for earning profits, as was held by the Hon’ble National Commission in Kavit Ahuja Vs. Shipra Estates I (2016) CPJ 31 but since the GMADA-appellants (FA No.54 of 2024) failed to discharge its onus, hence we hold that the appellant-Narendra Pal Singh is a consumer as defined under the Act. In this view of the matter, objection taken by the GMADA-appellants (FA No.54 of 2024) stands rejected. 
17.           As far as other objection qua limitation taken by the GMADA-appellants (FA No.54 of 2024) is concerned, the same has been adequately dealt with by the District Commission and needs no interference by this Commission.
18.           For the reasons recorded above, FA No.323 of 2023 titled as Narendra Pal Singh Versus Greater Mohali Area Development Authority and another filed by the appellant-Narendra Pal Singh stands partly allowed. The order impugned passed by the District Commission in consumer complaint bearing No.90 of 2021 stands modified and the GMADA - opposite parties no.1 and 2 (appellants in FA No.54 of 2024) are directed, jointly and severally, as under:-
    1. to refund an amount of Rs.26,769/- to the complainant –Narendra Pal Singh which is lying in excess with GMADA;
    2. to pay to the complainant-Narendra Pal Singh compensation by way of interest @9 % p.a. on the entire amount paid in respect of the plot in question from 15.02.2018 till 15.06.2020;
    3. to pay compensation of Rs.75,000/- to the complainant-Narendra Pal Singh for causing him mental agony and physical harassment ;
    4. to pay cost of litigation of Rs.35,000/- to the complainant-Narendra Pal Singh;
    5. This order be complied within a period of 45 days from the date of receipt of a certified copy thereof, failing which thereafter, opposite parties No.1 & 2 shall be liable to pay interest @9% per annum on the amounts mentioned at Sr. No.i, iii and iv and interest @12% per annum the entire accumulated amount (15.02.2018 till 15.06.2020) mentioned at Sr. No.ii, from the date of default i.e. after expiry of stipulated period of 45 days’ till realization.
19.           Consequently, FA No. 54 of 2024 titled as Greater Mohali Area Development Authority and another Versus Narendra Pal Singh stand dismissed with no order as to costs, subject to the modification aforesaid. 
20.           Pending applications, if any, in these cases, stand disposed of, accordingly.
21.           Certified Copies of this order be sent to the parties free of cost forthwith and one copy thereof be placed in the connected file.
22.           Files be consigned to Record Room after completion and the record of the District Commission alongwith certified copy of this order be sent back immediately.

Pronounced

13.06.2024

 [RAJ SHEKHAR ATTRI]

PRESIDENT

 (RAJESH K. ARYA)

 MEMBER

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