Chandigarh

StateCommission

CC/608/2016

Amarinder Singh Walia - Complainant(s)

Versus

M/s DLF Universal Limited - Opp.Party(s)

Lakhbir Singh, Adv.

22 Nov 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	494 of 2016
Date of Institution	:	22.08.2016
Date of Decision	:	22.11.2016

 

M.S. Gahlawat son of Sh.Jaswant Singh, resident of House No.950/31, Malik Colony, Near Habital Club, District Sonipat, Haryana.

…… Complainant

V e r s u s

 

1. DLF Universal Limited (earlier Known as DLF India Limited), having its Registered Office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon-122002, Haryana, through its Chairman/Managing Director/Director/Authorized Signatory.
2. DLF Universal Limited (earlier Known as DLF India Limited), SCO No.190-191-192, Sector 8-C, Chandigarh, through its Chairman/Managing Director/Director/Authorized Signatory.               

....Opposite Parties

Argued by:-         Sh.Narender Yadav, Advocate for the complainant.

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

 

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

 

Complaint case No.	:	608 of 2016
Date of Institution	:	20.09.2016
Date of Decision	:	22.11.2016

 

Amarinder Singh Walia, House No.1258, Sector 37-B, Chandigarh-160036.

…… Complainant

V e r s u s

 

M/s DLF Universal Limited, through its Managing Directors/Directors, Rajiv Gandhi Technology Park, Plot No.2, Tower-D, Ground Floor, Chandigarh-160101

....Opposite Party

Argued by:-         Sh.Lakhbir Singh, Advocate for the complainant.

                         Ms.Ekta Jhanji and Sh.Parveen Jain, Advocates for the                         opposite party.

                 

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 the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In both the complaints, refund of the deposited amount, alongwith interest, compensation etc. has been claimed by the complainant(s). At the time of arguments, on 17.11.2016, 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.494 of 2016 titled as M.S.Gahlawat Vs. DLF Universal Limited and another. By filing this complaint, the complainant is seeking refund of amount paid by him, to purchase a built-up flat, bearing no.R1-E309, Ground Floor, measuring 1881 square feet, (in short the unit), in a project, floated by the opposite parties known as ‘Hyde Park Terraces” in Hyde Park Estate, New Chandigarh, Mullanpur, Punjab. Allured by high profile projections given and salient features highlighted by the opposite parties, in respect of the project, in question, in their brochure Annexure C-1, the complainant booked the said unit on 28.09.2012. For payment, he opted for construction linked plan.  Total sale price of the unit was fixed at Rs.76,89,835.02Ps., which included, External Development Charges, Parking BSP, Maintenance Security etc. The complainant was also required to pay service tax, club charges etc. On the above said date, he paid an amount of Rs.6 lacs, against receipt. It was further stated that Buyer’s Agreement was entered into between the parties on 30.08.2013. By that time, he had already paid an amount of Rs.27,44,303/-. The Agreement was heavily loaded in favour of the opposite parties. He was given no time to object to its provisions, as such, it was got signed under duress. It was further stated that before filing this complaint, he had paid an amount of Rs.72,10,931.17Ps. against price fixed for the unit, in question. To say so, reliance has been placed upon copy of a ledger account sheet, maintained by the opposite parties.
3.         It was specifically stated that as per Clause 11 (a) of the Agreement, the opposite parties were liable to deliver possession of the unit, in question, to the complainant, within a period of 30 months, from the date of application to purchase, moved on 28.09.2012 i.e. on or before 28.03.2015, subject to force majeure circumstances. However, it was not done. Many a time, as and when site was visited, it was found that progress of the construction was very slow. In the meantime, on 13.01.2014, an advertisement was issued by the opposite parties promising that possession of the constructed unit will be handed over by the end of 2014, however, they failed to do so.
4.         It is further case of the complainant that the opposite parties were contacted through letters, emails and by making telephone calls, many times, with a request to hand over possession of the unit, as promised but his request met with false assurances. However, nothing concrete was done to complete the construction. Thereafter, he was told that possession of the unit will be delivered at the end of September 2015. The said promise also failed. Thereafter, to the queries raised, no reply was given by the opposite parties.  In his complaint, in para no.13, many deficiencies have been indicated in the construction at the project site. It was further stated that quality of construction was also very poor.  
5.         It was stated that the aforesaid acts of the opposite parties  amounted to deficiency in providing service and adoption of unfair trade practice. Hence, this consumer complaint was filed by the complainant, seeking refund of the amount deposited alongwith interest, compensation and litigation expenses, as stated above. Apart from that, it was prayed that for adopting unfair trade practice, in delaying execution of the Agreement, after accepting huge amount, special costs be imposed upon the opposite parties.  
6.          Notice of the complaint was sent to the opposite parties.
7.         However, before filing written reply and evidence, on 14.10.2016, an application was moved by the opposite parties, under Section 8 of the Arbitration and Conciliation Act, 1996, for referring the matter to the Arbitration.  The said application was disposed of, by this Commission, vide order dated 18.10.2016, 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 26.10.2016, wherein it was pleaded that possession of the unit, in question, had already been offered to the complainant, vide letter dated 15.02.2016. It was stated that despite demand raised, the complainant has failed to deposit the requisite amount, on account of which, possession of the unit could not be handed over to him. It was further stated that the opposite parties are entitled to claim amount, towards holding charges. It was further stated that in the face of arbitration clause no.55 contained in the Agreement, dispute, if any, was required to be referred to an Arbitrator, as such, the consumer complaint was not maintainable. It was pleaded that the complainant being investor, has purchased the unit, in question, for resale, and as such, did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act. It was further pleaded that since the 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 was 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. 225 built-up units have also been constructed. Qua some, including the unit of the complainant, occupation certificates have also been granted by the Competent Authorities. It was averred that this Commission is not vested with territorial jurisdiction.

                It was admitted that the complainant had purchased the unit, in question, from the opposite parties. Execution of the Agreement was also admitted. It was stated that the opposite parties were only to make an endeavor to offer possession of the said unit, within in a total period of 30 months aforesaid. In other words, an attempt has been made to say that time was not the essence of contract. It was averred that delay took place on account of force majeure circumstances. It was further stated that the complainant defaulted in making payment of installments. It was further averred that occupation certificate in respect of the unit has already been obtained on 20.08.2015, whereafter only, possession of the unit was offered to the complainant. 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, in case, the complainant still wanted refund of the amount deposited; the same would amount to surrender of the unit, and would attract forfeiture charges. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.

9.         The parties led evidence in support of their cases.
10.         Counsel for the respective parties, addressed arguments in tune with the averments, contained in the complaint and their written statement.
11.         We have heard Counsel for contesting parties, and, have gone through evidence and record of the cases, very carefully and are of the considered opinion that the complaints deserve to be partly allowed, in terms of the facts given hereinafter. It is not in dispute that a rosy picture was given by the opposite parties qua the project, in question, in their brochure Annexure C-1. It is specifically stated by the complainant that he is in Govt. service, attracted by the promises made in the brochure and advertisements, he decided to purchase a built-up unit, for his residential purpose, in the said project. It is not in dispute that to book a unit, he moved an application, on making payment of Rs.6 lacs, as a result whereof, the said unit was booked in his name on 28.09.2012. It is also on record that Buyer’s Agreement was got executed on 30.08.2013 i.e. after about 11 months of first payment. When the above Agreement was signed, the complainant had already paid an amount of Rs.27,44,303/-. Execution of Buyer’s Agreement was delayed, it needs to be executed within a reasonable period, say two or three months, from the date of booking. This Commission has held in number of cases that if Agreement is not presented for signing within a reasonable time, from the date of receipt of earnest money, it would amount to adoption of unfair trade practice on the part of a builder.  It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-

“The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated  23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer’s Agreement was not put for signing in a reasonable time, say two  to three months. She continued to make payment and when Buyer’s Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected”.

12.          In view of above, it is held that the opposite parties had committed unfair trade practice, on this count.
13.         It is also on record that possession of the unit, was agreed to be delivered within 30 months from the date of application. 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 complete construction of the Said Independent Floor within a period of Thirty (30) 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.”

 

14.         Subject to any force majeure circumstances, it was agreed that possession will be delivered within 30 months, from the date of signing of the application. Further, as per stipulation made in the Agreement, failure to offer possession by the stipulated date, subject to issuance of any notification by the Govt. etc. was to attract penal compensation, for the period of delay. As per promise made, possession was to be delivered on or before 28.03.2015. However, as per stand taken by the opposite parties, possession of the said unit was allegedly offered on 15.02.2016. The above fact has been controverted by the complainant, by stating that the letter, referred to above, was never received by him. There is nothing  on record to say that any reminder was issued to the complainant, asking him to get possession of the unit, in question. Be that as it may, it is proved on record that the opposite parties have failed to fulfil their promise. Consumer cannot be made to wait for endless time. The complainant had already performed his part of the contract, by making more than 90% of the payment, towards price of the said unit. Fault lies on the part of the opposite parties. No specific reason has been assigned by the opposite parties, as to what stopped them to deliver  possession   of   the   unit,   by   the   stipulated date. At the same time, there is no averment in the written reply supported by any cogent and convincing evidence, to convince this Commission, that delay occurred on account of force majeure circumstances. The   Hon’ble   Supreme Court of India, in Lucknow   Development   Authority   vs   M.  K. Gupta, 1994 SCC (1) 243, held   that   if   a   builder   fails   to   deliver   possession of   the   property   by   the   stipulated   period,   the    delay  so  caused   is   denial   of   service.   Thus, it could very well be said that the act of non-delivery of possession of the unit, by the stipulated date, in the absence of any force majeure circumstances, is a material deficiency on the part of the opposite parties.

                No doubt, reliance was placed by the opposite parties on the partial completion certificate dated 10.09.2014 Annexure R-6, 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 unit to the complainant, by the stipulated date i.e. by 28.03.2015, 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 complainant, to say no to the possession, even if it is assumed that offer was made to him, vide letter dated 15.02.2016 (In the connected case, offer of possession was allegedly sent, after a delay of about more than 16 months). Similar view was taken by the Hon’ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015, observing as under:-

“An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate”.

                The principle of law laid down in the aforesaid case, is fully applicable to the present case. 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.

15.         As far as obtaining of occupation certificate dated 20.08.2015, in respect of the unit, in question, is concerned, it may be stated here that it has been obtained after more than four months of the stipulated date of delivery i.e. after  28.03.2015 (promised date). Again, even this much has not been clarified by  the opposite parties, as to what stopped them, to offer possession of the unit, in question, after August 2015, when occupation certificate had already been obtained by them. Thus, it could very well be said that even by that time, the basic amenities were not complete at the site. Had basic amenities been available at the site, by the date, partial occupation certificate was with the opposite parties, they would have definitely offered possession of the unit, within few days thereafter but they failed to do so. It is settled law that once there was a material violation on the part of the opposite parties, in not handing over possession, in time, it is not obligatory for the purchaser to accept possession, even if it is offered to him. Similar view was taken by the National Commission, in the case of M/s. Emaar MGF Land Ltd. & anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016. No help, therefore, can be drawn by the opposite parties, from the certificates, referred to above, having been obtained after the stipulated date, or the alleged offer of possession letter dated 15.02.2016.

                It is very significant to add here that on the one hand, the opposite parties are claiming that they have offered possession of the unit, to the complainant, vide letter dated 15.02.2016, however, at the same time, in their written statement, filed before this Commission on 26.10.2016 while taking a somersault, in para nos.9 to 13, they are stating that construction of all the facilities/amenities are on verge of completion and all the facilities promised by the opposite parties in its brochure would be completed and provided to the buyers in coming days.  Further, it was also stated that offer of possession shall be given to the complainant very soon with all the promised amenities. The contrary stand taken by the opposite parties, in itself, is sufficient to prove that still they are not ready with possession to be delivered. If it is so, the averment of the complainant that no such offer letter was ever sent by the opposite parties to him, in respect of the unit, in question, appears to be correct. Under above circumstances, it is held that opposite parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him.      

                Not only as above, even if it is assumed for the sake of arguments that possession so offered is genuine, even then, it is a settled principle of law that once there is a material violation on the part of the opposite parties, in not handing over possession, in time, it is not obligatory for the purchaser to accept possession, so offered to him, after a long delay. It was also so said by the National Commission, in the case of Dr.Manuj Chhabra (supra).

16.         The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that there is nothing on the record that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  opposite parties, mere bald assertion i.e. simply saying that the  complainant being investor, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the opposite parties, in their written reply, therefore, being devoid of merit, is rejected.  
17.         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 complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. 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 complainant, 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. 

18.         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 unit to the complainant, by the opposite parties, despite receiving substantial amount, by the stipulated date. The complainant hired the services of the opposite parties, for purchasing the unit, in the manner, referred to above. According to Clause 11 (a) of the Agreement, the opposite parties  were bound to deliver possession of the unit, in question, to the  complainant, within a period of 30 months, from the application dated 28.09.2012 i.e. on or before 28.03.2015, alongwith all basic amenities necessary for smooth living. Section 2 (1) (o) of the Act, defines service as under:-

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

From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2 (1) (o) of the Act. Similar principle of law was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainant has 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 him, as he falls 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.

19.         Since, it has already been held that the opposite parties, were bound to deliver possession of the unit, within a period of 30 months, from the application dated 28.09.2012 i.e. on or before 28.03.2015, 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 30 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 unit, 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 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.

20.         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, is concerned, it may be stated here that no specific reason has been assigned by the opposite parties, as to what stopped them to deliver  possession   of   the   unit,   by   the   stipulated date. At the same time, there is no averment in the written reply supported by any cogent and convincing evidence, to convince this Commission, that delay occurred on account of force majeure circumstances. As such, the plea taken by the opposite parties, in this regard, also deserves rejection.
21.         The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause no.55 in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

                To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

22.         Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of 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) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.
23.         In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

 “8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

24.         Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.
25.         Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.
26.         We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/ multinational companies/traders. As in the present case, the complainant  has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite parties. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.
27.         The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the unit, in the said project, launched by the opposite parties. However, his hopes were shattered, when despite making substantial amount, he  failed to get possession of the unit, in question, in a developed project. As per ratio of the judgments in the case of 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), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.
28.         Not only this, recently, it was also so said by 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. Relevant portion of the said case, reads thus:-

“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.”

                In view of the above, the plea taken by the opposite parties, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.

29.         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 unit, to be delivered to the complainant, by the stipulated date but the complainant wanted to rescind the contract, on account of some unavoidable circumstances/financial constraints or for any personal reason, and is 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 complainant is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. 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.
30.         It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. An amount of Rs.72,10,931.17Ps. was paid by the complainant, without getting anything, in lieu thereof. On the other hand, nothing has been brought on record, in the shape of any other statement of accounts, to prove to the contrary. 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 39 (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 complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.72,10,931.17Ps., 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  39 (a) of the Agreement), till realization.

                In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.       

31.         No other point, was urged, by Counsel for the parties, in both the complaints.
32.         For the reasons recorded above, both the complaints are partly accepted, with costs, in the following manner:-.

 

Consumer complaint no.494 of 2016. The opposite parties are jointly and severally directed as under:-

1. To refund the amount of   Rs.72,10,931.17Ps., to  the   complainant, alongwith interest @15% p.a. from the respective  dates  of  deposits onwards.

 

2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the  complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.50,000/-, to the   complainant.

 

4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, 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 no.608 of 2016. The opposite party is directed as under:-

1. To refund the amount of   Rs.74,46,995/-, to  the   complainant, alongwith interest @15% p.a. from the respective  dates  of  deposits onwards.

 

2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the  complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.50,000/-, to the   complainant.

 

4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, 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.

33.         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).
34.         Certified copy of this order be placed in the connected complaint file.
35.         Certified Copies of this order be sent to the parties, free of charge.
36.         The file be consigned to Record Room, after completion.

Pronounced.

22.11.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Rg.

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	608 of 2016
Date of Institution	:	20.09.2016
Date of Decision	:	22.11.2016

 

Amarinder Singh Walia, House No.1258, Sector 37-B, Chandigarh-160036.

…… Complainant

V e r s u s

M/s DLF Universal Limited, through its Managing Directors/Directors, Rajiv Gandhi Technology Park, Plot No.2, Tower-D, Ground Floor, Chandigarh-160101

....Opposite Party

                 

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

 

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:-         Sh.Lakhbir Singh, Advocate for the complainant.

                         Ms.Ekta Jhanji and Sh.Parveen Jain, Advocates for the                         opposite party.

 

JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.494 of 2016 titled as M.S.Gahlawat Vs. DLF Universal Limited and another, this complaint has been partly accepted with costs.

2.         Certified copy of the order passed in consumer complaint bearing No.494 of 2016, shall also be placed on this file.
3.         Certified copies of this order, alongwith the main order passed in consumer complaint bearing No.494 of 2016, be sent to the parties, free of charge.
4.         The file be consigned to Record Room, after completion.

       

Sd/-                     Sd/-                                  Sd/-

(DEV RAJ) MEMBER Rg.

(JUSTICE JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER