Chandigarh

StateCommission

A/207/2023

GREATER MOHALI AREA DEVELOPMENT AUTHORITY - Complainant(s)

Versus

MAHESH DHIMAN - Opp.Party(s)

SANDEEP BHARDWAJ ADV.

30 Apr 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

[ADDL. BENCH]

 

 

Appeal No.	:	A/207/2023
Date of Institution	:	30.08.2023
Date of Decision	:	30.04.2024

 

1.       Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, S.A.S. Nagar, Punjab, through its Chief Administrator.

2.       Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, S.A.S. Nagar, Punjab, through its Estate Officer (I.T City), Mohali, Punjab.

….. Appellants

 

V e r s u s

 

Mahesh Dhiman S/o Sh. Ram Parkash, Resident of House No.2051-D, Sector 63, CHB, U.T. Chandigarh.

….Respondent

 

BEFORE:

MRS. PADMA PANDEY, PRESIDING MEMBER PREETINDER SINGH, MEMBER

 

ARGUED BY:    Sh. Sandeep Bhardwaj, Advocate for the Appellants.

Sh. Ranjinder Singh Sidhu, Advocate for the Respondent.

 

 

PER PREETINDER SINGH, MEMBER

 

 

 

1]                This appeal is directed against the order dated 06.04.2023, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. District Commission”), vide which, it allowed the Consumer Complaint bearing no.CC/833/2021 in the following terms: -

“11.   In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OPs are directed as under: -

 

i)        to pay interest on the entire deposited amount towards the consideration of the plot in question @9% p.a. from the stipulated date of handing over of the possession of the plot in question till the date of actual physical and legal delivery of possession to the Complainant.

 

ii)       to pay Rs.1.00 lakh to the Complainant as compensation for causing mental agony and harassment to him;

 

iii)      to pay Rs.35000/- to the complainant as costs of litigation.

 

12.     This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.”

 

 

2]             For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. District Commission.

 

3]                Before the Ld. District Commission, it was the case of the Complainant/Respondent that the OPs opened a Scheme for 750 residential plots in IT City Mohali and the complainant applied in the said scheme and was found successful in draw of lots vide Serial No.243 held on 21.09.2016 and received the letter of intent dated 24.12.2016 by OPs. The Complainant paid the entire amount of Rs.50,56,202/- with development authority i.e. OPs. Thereafter, vide allotment letter dated 10.07.2020 the Complainant was allotted Plot No. 1213, Sector 83, Alpha, Block-B, measuring 256.66 sq. yards at 750 Plots Scheme (IT City, Mohali). As per Clause No.15 of the letter of intent the physical possession of the said plot was to be handed over to the allottee within a period of one year from the date of issuance of letter of intent. It was alleged that despite making due payment the OPs failed to handover the possession of the plot within the stipulated period despite making various representation and requests to the OPs. There was delay of more than 02 years 06 months and 17 days in delivering the possession of plot to the Complainant and as such, the Complainant was entitled for delayed interest. Hence, the aforesaid Consumer Complaint was filed before the Ld. District Commission, alleging deficiency in service and unfair trade practice on the part of Opposite Parties.

 

4]                The OPs/Appellants contested the claim of the Complainant before Ld. District Commission by filing their reply, inter alia, pleading that the Complainant was offered possession of the plot vide allotment letter dated 10.07.2020 wherein as per Clause No.9 of the terms & conditions of the allotment letter the Complainant was offered possession of the plot which he was bound to take within the given time of 90 days.  It was asserted that if between the date of issuance of letter of intent of Plot i.e. 24.12.2016 till the offer of possession of plot to him through allotment letter dated 10.07.2020, the Complainant was aggrieved with development works of this Scheme, then as per Clause No.27 of the allotment letter he could have refused to accept the offer of allotment within 30 days in that case the deposited amount could have been considered to be refunded to him as per rules, but at this stage after accepting the possession of the plot the Complainant cannot raise the issue of delay in delivery of plot. Further, since he has accepted the possession of plot offered through allotment letter the Complainant has accepted performance of the contractual obligations in a manner otherwise than agreed. Thus, the Complainant was estopped by his own act and conduct from alleging delay in delivery of possession of plot. The cause of action set up by the complainant was denied.  The consumer complaint was sought to be contested on these lines.

 

5]                After hearing the counsel for the parties and going through the record, the Ld. District Commission partly allowed the complaint, in the manner, as stated above.

 

6]                Aggrieved against the aforesaid order passed by the Ld. District Commission, the instant Appeal has been filed by the Appellants/OPs (Greater Mohali Area Development Authority).

 

7]                We have heard Learned Counsel for the parties and have also gone through the evidence and record of the case, with utmost care and circumspection.

 

8]                The core question that falls for consideration before us is as to whether the Ld. District Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

9]                After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be dismissed for the reasons to be recorded hereinafter.

 

10]              It is the case of the Appellants that the Ld. District Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding. It has been submitted that the Ld. District Commission failed to appreciate that there was an arbitration clause in the contract on account of which the dispute cannot be resolved by the Consumer Commission. Furthermore, the Respondent is not a ‘consumer’ and the plot allotted to him in no manner showed that the same was meant for personal use.  It has also been submitted that the delay caused due to force majeure events like delay in issuance of environmental clearance and COVID-19. It has been argued that by not appreciating the aforesaid factual aspects, the Ld. District Commission accepted the Complaint thereby committed a grave error and thus, the impugned order is liable to be set-aside. Conversely, it has been contended on behalf of the Respondent/ Complainant that the order passed by the Ld. District Commission is quite just & right and does not call for any interference.

11]              Per material available on record, the Respondent/ complainant had paid an amount of ₹50,56,202/- towards the plot in question. It is not in dispute that per Cl. No.15 of the letter of intent dated 24.12.2016, the physical possession of the plot was to be handed over within a period of one year from the date of issuance of letter of intent i.e. by 23.12.2017. Admittedly, the physical possession of the plot in question was given to the Complainant on 10.07.2020 i.e. after a delay of more than 2½ years.

12]              So far as the submission taken by Ld. Counsel for the Appellants that in the face of existence of Arbitration clause in the contract, jurisdiction of this Commission is barred; it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as “Aftab Singh  Vs. Emaar MGF Land Limited & Anr.”, CC/701/2015, 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. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, submission made in this regard stands rejected.

13]              Learned counsel for the Appellants also contended that the Respondent/Complainant did not fall within the definition of ‘consumer’, it may be stated here that the contention so raised sans any documentary evidence and as such the onus shifts to the Appellants to establish that the complainant, in the present Complaint, has purchased the unit in question, in the manner explained above, to indulge in ‘purchase and sale of units/plots’ as was held by the Hon’ble National  Commission in “Kavit Ahuja vs. Shipra Estates” I (2016) CPJ 31, but since they failed to discharge their  onus, hence we hold that the complainant is consumer as defined under the Act. Objection taken in this regard as such stands rejected.

14]              Proceeding further, we advent to the another submission made by the Appellants to the effect that the delay occurred due to force majeure events like delay in issuance of environmental clearance and COVID-19. It may be stated here that the said pandemic which took place in the year 2020 being a subsequent event, has no relation whatsoever in the present lis, in as much as, when possession of the Plot was to be delivered within a period of one year from the date of issuance of LOI i.e. latest by the end of the year 2017.  It is therefore legitimately proved that the Appellants were deficient in providing service and were negligent on this count and in no way can claim immunity, under the garb of aforesaid circumstances, referred to above.

15]              The Appellants also tried to wriggle out of the situation, by maintaining that due to delay in issuance of environmental clearance, which was beyond their control, possession of the plot could not be delivered within the stipulated time frame. We have considered the said contention and are of the view that the same does not merit acceptance for the reasons stated hereinafter. It may be stated here that the Appellants/opposite parties have failed to clarify, as to why they received huge amounts, referred to above, from the Respondent/Complainant, knowing fully well that necessary clearances have not been given by the competent Authorities. In our opinion, the Appellants should have obtained all the approvals/clearances before booking the said plot. If the opposite parties chose to accept booking without obtaining statutory approvals/clearances, they are to blame to themselves only. The purchaser of the plots, who had nothing to do with grant of statutory approvals/clearances, cannot be penalized by postponing the possession. Our this view is fortified by the observations made by the Hon’ble National Commission in M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17 Dec 2015.  The Learned District Commission after observing that non-delivery of plot by the promised date is a material violation thus rightly held the act of the Appellants in offering possession after inordinate delay of more than three years to be illegal and arbitrary. 

16]              Learned counsel for the Appellants argued that the interest, compensation and costs of litigation awarded by the Ld. District Commission are arbitrary and highly excessive.  In order to set rest this issue, we lend support from the judicial pronouncement of the Hon’ble National Commission in “Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture Hubtown Sunstone”, Consumer Case No. 12 of 2017, decided on 04.05.2022, wherein the Hon’ble National Commission awarded interest @9% p.a. on the deposited amount, for the period of delay. Relevant part of the said order reads as under:-

“…Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today…”

                   Similar view has been expressed by the Hon’ble National Commission in “Shreya Kumar Versus M/s. Ansal Housing & Construction Ltd.”, Consumer Case No. 1021 of 2017, decided on 05.05.2022. In view of the observations made by the Hon’ble National Commission, in the above noted cases, we are of the considered view that the interest awarded by the Ld. District Commission @ 9% p.a. on the entire amount deposited by the complainant, against his plot, from the due date of possession till the date when possession thereof has been delivered to him, would meet the ends of justice and thus, needs no interference by this Commission. With regard to the quantum of compensation and costs of proceedings, in the light of the judicial pronouncement of Hon’ble Supreme in “Lucknow Development Authority v. M.K.Gupta” (1994) 1 SCC 243, we are satisfied that the relief granted by the Ld. District Commission is quite reasonable and in consonance with the facts and circumstances of the case. To our mind, no case is therefore made for any interference in the well reasoned findings recorded by the Ld. District Commission in the order under challenge.

17]              No other point was urged, by the Learned Counsel for the parties.

 

18]              It is demonstrable from a reading of the impugned order of the Ld. District Commission that it is certainly not an order passed without reasons or without applying the judicious mind. The facts & circumstances of the case have been gone into, weighed and considered, and due analysis of the same has been made. It also does not appear to be an order passed without taking into account the available evidence.

 

19]              In the wake of the position, as sketched out above, we are dissuaded to interfere with the impugned order rendered by the Ld. District Commission. The appeal being bereft of merit is accordingly dismissed and the order of the Ld. District Commission is upheld.

 

20]              All the pending application(s), if any, also stands disposed off accordingly.

 

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

Pronounced

30.04.2024.                                                                                               

Sd/-

[PADMA PANDEY]

PRESIDING MEMBER

 

Sd/-

 (PREETINDER SINGH)

MEMBER

“Dutt”