MRS. NEENA SANDHU, MEMBER

1.       This order shall dispose of 2 appeals, bearing No. 352 of 2009 titled as Silver City Housing and Infrastructure Limited & others Vs. Gursharan Singh and appeal No. 579 of 2009 titled as Gursharan Singh Vs. Silver City Housing & Infrastructure Limited, passed by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in complaint case No. 1330 of 2008, vide which it accepted the complaint filed by Gursharan Singh, complainant and directed the OPs to pay Rs.50,000/- as compensation alongwith interest @ 24% p.a. on Rs.18,63,750/- w.e.f. 16.1.2009 till the last date of the month, in which the possession was delivered to the complainant, within 30 days and the monthly compensation shall be paid by the 7^th of each following month, failing which to pay it with interest @ 12% p.a. The OPs were also directed to pay Rs.10,000/- as litigation costs. 

2.         Briefly stated, the facts of the case are, that the complainant had booked a flat in Silver City Themes at Village Bhankarpur, M.C. Dera Bassi, Patiala, now SAS Nagar, Mohali (Punjab) with the OPs and he paid a sum of Rs.2,08,500/- in cash as booking amount for the said flat. The Ops had acknowledged the same vide receipt No.592 dated 8.1.2006 against which, he was allotted flat No.236-A, 1^st Floor, Block No. A-1, Type CAT-A2 in the Silver City Themes at Village Bhankarpur. It was stated that an agreement of sale was entered into between the parties on 16.2.2006. As per condition No.2 of the said agreement, the total cost of the flat was Rs.19,65,000/-.  It was stated that the complainant had paid an amount of Rs.18,63,750/- to the Ops, as per the terms and conditions of the agreement of sale . As per condition No.3 of the agreement of sale, the Ops were to complete the construction of the apartments by 31.7.2007 i.e. the due date for payment of 5^th installment of 5% amounting to Rs.2,21,250/-. It came to the notice of the complainant that the Ops had stopped the construction of the project, in which the aforesaid flat was allotted to the complainant.  It was further stated that the Ops kept silent over the progress of construction of flat. They did not intimate anything about the progress in construction made by them to the complainant till date. It was further stated that the project was delayed for more than 1 year and 2 months till date and in this manner, the Ops used the amount of Rs.18,63,750/- of the complainant. The complainant sent a legal notice dated 27.9.2008 through Regd. AD to the Ops but the Regd. Cover along with AD was received back unclaimed by the Counsel for the complainant. It was further stated that the aforesaid act of the OPs, amounted to deficiency in rendering service and indulgence in unfair trade practice. Hence, the complaint was filed.

3.         Reply was filed by Ops wherein they admitted that the complainant had paid Rs.18,63,750/-  for the flat aforesaid. It was denied that the same was paid as per the terms & conditions of the agreement.  It was stated that the complainant had violated the terms ad conditions of the agreement, as he was a bad payer of installments and committed irregularities in paying the same. It was further stated that the total cost of the flat was Rs.20,85,000/- and not Rs.19,65,000/- as stated by the complainant. It was denied that the OPs were to complete the construction by 31.7.2007. It was admitted that the construction was stopped and delayed due to the reasons beyond the control of the OPs as CWP No.18632 of 2005, titled as Dharam Chand & Another Vs. State of Punjab and others being Public Interest Litigation, was filed in the Hon’ble Punjab and Haryana High Court, in which the Court vide its order dated 30.1.2007 stayed the notification dated 17.1.2006 of Punjab Pollution Control Board, which was finally vacated vide order dated 1.5.2008, and the Punjab Pollution Control Board vide its letter dated 19.9.2008 issued NOC. It was further stated that thereafter construction was resumed at the site. It was further stated that the complainant was informed about each and every development of the project regarding the stop of construction, retart of construction etc. All other allegations, levelled by the complainant, in the complaint, were denied.

4.       The parties led evidence, in support of their case.

5.       The learned District Forum allowed the complaint, in the manner, referred to, in the opening para of the judgment.  

6.          Aggrieved against the order, dated 28.5.2009 passed by the learned District Forum, the OPs/appellants, filed appeal No.352/2009 challenging the legality and validity thereof and the complainant/appellant filed appeal No.579 of 2009 for directing the OPs to deliver possession of the flat and other relief claimed in the complaint.

7.       We have heard the Law Officer on behalf of appellants in appeal No.352 of 2009, and for the respondents in appeal No.579 of 2009, as also the Counsel for the complainant/appellant in appeal No.579 of 2009 and for the respondent in appeal No.352 of 2009 and have, gone through the written arguments, evidence and record of the care, carefully.

8.            Sh.Surinder Gera, Law Officer, on behalf of OPs/appellants in Appeal No. 352 of 2009 submitted that definitely, there was delay in completing the project but it was not due to the fault of the OPs, but due to the circumstances, beyond their control as there was stay from the Hon’ble Punjab and Haryana High Court in CWP No.18632 of 2005 titled as Dharam Chand & Others Vs. State of Punjab. He further submitted that, therefore, the OPs were unable to raise any construction. In support of his contentions, regarding the force Majeure clause, the Law Officer placed reliance on Southern Gas Ltd. Vs. Visveshwaraya Iron and Steel Limited, 1999(1) RCR (Civil) Page 444. It was further submitted that it was the complainant, who never adhered to the terms of the agreement and did not make the payment in time. It was further submitted that now the construction on the site, was in full swing and the OPs will hand over the flats within a short span of time. It was further submitted that the buyers have already agreed to take the possession of their respective flats by the end of June, 2011. It was further submitted that some of the cases have already been amicably settled between the parties and in this regard, the OPs placed on record a copy of the order dated 20.8.2010 passed by the Punjab State Commission, in which it was held that “the respondents shall deliver the constructed flats as per the original agreement to the complainant on or before 30.6.2011 and in case the respondents failed to do so, the respondents shall refund the entire money alongwith interest @ 18% p.a. from the date of deposits till the date of payment on or before 15.7.2011.” It was submitted that this Commission has no territorial jurisdiction to adjudicate the matter as the property is situated in Derabassi (Punjab), hence, the Punjab State Commission has the territorial jurisdiction to adjudicate this matter.  It was further submitted that the present complaint was not maintainable because there is an arbitration clause in the agreement and, therefore, the matter should have been referred to the arbitrator. In support of this submission, the OPs placed reliance on the judgment passed by the Hon’ble Supreme Court in titled as Markfed Vanaspati & Allied Industries Vs. Union of India, 2007(4) RCR (Civil) 358. It was further submitted that the learned District Forum declined the request of the OPs, to cross-examine the Local Commissioner. It was further submitted that the interest awarded by the learned District Forum @24% p.a. was on the higher side. It was further submitted that it was wrongly awarded from 16.1.2009. It was further submitted that there was no deficiency in service or negligence on the part of OPs and the delay occurred of the aforesaid circumstances. 

9.       The learned Counsel for the appellant/complainant submitted in Appeal No.579 of 2009 that the learned District Forum passed the order by ignoring the prayer for reliefs sought by the complainant. As per para 14 (a) of the complaint, the complainant prayed that the OPs may be directed to handover the possession of the flat, but the order passed by the learned District Forum is silent regarding the possession of the flat. It was further contended that even till today, the complainant is ready to take the possession of flat, if the OPs give the same, on or before 30.6.2011, as in some other cases, the matter has already been settled between the parties and the OPs have agreed to give possession of the flats to some of the buyers by this date. In this regard, the OPs have placed a copy of the order passed by the Punjab State Commission. It was further submitted that the OPs should pay interest, on the amount of 18,63,750/- @ 24% for the period of delay i.e. from 1.8.2007 till handing over the possession of the flat.

10.     It is evident, from the record, that there was a stay from 30.1.2007 to 1.5.2008 granted by the Hon’ble Punjab and Haryana High Court in CWP No. 18632 of 2005 and, therefore, the OPs were unable to raise construction on the site, almost approximately for one year and two months. But, thereafter, the OPs had no excuse, as to why they did not hand over the possession of the flat. Even, we are of the view that the OPs should have restarted the construction immediately after the stay had been vacated and should have given the possession may be by the end of 2009 or start of 2010. However, the OPs were unable to give the possession even till today. Hence, there was deficiency, in service, on the part of the OPs and they also indulged into unfair trade practice. However, from the submissions made by the learned Counsel for the appellant/complainant, it is clear that the complainant is still ready to get possession of the flat provided the OPs gave him interest @ 24% p.a., on the amount deposited, on account of delay, from the date of deposit, till the delivery of possession of the flat.   It will be appropriate if the OPs are directed to handover the possession of the flat, to the complainant also, as they have already agreed to give possession to the some of the buyers, alongwith interest @9% on account of delay, on the deposited amount, till the handing over possession of the flat.

 11.    The objection taken by the OPs with regard to the territorial jurisdiction is not tenable, because the OPs have their, head office at Chandigarh. Thus, as per Section 11 (2) (a) of the Consumer Protection Act, 1986, the Consumer Fora, Chandigarh, had a territorial jurisdiction to entertain the complainant.

12.     We don’t find any force, in the submission, made by the learned Counsel for the OPs, that the complaint filed under the Consumer Protection Act, was not maintainable, because as according Clause 30 of the agreement, in case of any dispute, between the parties, the matter could only be referred to the arbitrator, and no complaint could be filed in the Consumer Fora. There is, no dispute, that there is a provision of arbitration clause in the agreement. Arbitration clause does not create any bar to the filing of a complaint in Consumer For a. Section 3 of the Consumer Protection Act, 1986, provides that the provisions of the Act shall be, in addition to, and not in derogation of the provisions of any other law for the time being in force.

13.     The objection taken by the OPs regarding the cross-examination of the Local Commissioner, is even, not tenable because once, it was proved, beyond any doubt, that there was a delay, in handing over the possession of the flat, then it is immaterial, whether the Local Commissioner had been cross-examined or not, as such cross-examination would not have affected the decision.

14.     The District Forum was wrong, in awarding interest @ 24% p.a. which is certainly on the higher side. In this view of the matter, we feel that it will be appropriate if the OPs are directed to pay interest @ 9% p.a. from 16.1.2009, till the date of handing over possession within 6 months, failing which, to refund the deposited amount with interest @ 18% p.a. from the respective dates of deposit, till realization. The award of amount of interest shall take care of the mental agony and harassment suffered by the complainant at the hands of the OPs.

15.     In view of the above discussion, we have come to the conclusion that there is deficiency, in service, on the part of OPs and they also indulged into unfair trade practice. Appeal No.352 of 2009 filed by the OPs is dismissed being devoid of merit, with no order as to costs.

16.          Appeal bearing No.579 of 2009 filed by the complainant/appellant (Gursharan Singh) is allowed, and the order passed by the learned District Forum is set aside. We direct the OPs/respondents to handover the possession of the flat, on payment of the remaining installments of sale consideration, within six months, from the date of receipt of a copy of this order, alongwith interest @ 9% p.a. on the amount already deposited  from 16.1.2009 till the handing over possession of the flat. In case, the OPs failed to give the possession of the flat, within six months, from the date of receipt of a copy of this order, then the OPs shall refund the total amount deposited by the complainant, alongwith interest @ 18% p.a., from the respective dates of deposit of the amount, by the complainant, till its realization. The OPs shall also pay costs of litigation to the tune of Rs.5,000/-. 

17.          Copies of this order be sent to the parties, free of charge. 

Pronounced.                                                                        

29^th April, 2011.