Chandigarh

StateCommission

CC/725/2016

Brij Mohan - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Developers Private Limited - Opp.Party(s)

Balwinder Singh Kalsi, Adv.

06 Feb 2017

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	497 of 2016
Date of Institution	:	22.08.2016
Date of Decision	:	06.02.2017

 

1. Ms.Parmod Khanna wife of Sh.Vijay Khanna, aged about 65 years.
2. Ms.Garima Khanna daughter of Sh.Vijay Khanna.

Both residents of H.No.2618, Sector 40-C, Chandigarh.

……Complainants

V e r s u s

1. M/s Omaxe Chandigarh Extension Developers Private Limited, 10 Local Shopping Complex, Kalka Ji, New Delhi-110019 (Corporate Office), through its Managing Director/Principal Officer.

 

2. M/s Omaxe Chandigarh Extension Developers Private Limited, SCO No.139-140, 1^st Floor, Sector 8-C, Chandigarh U.T.-160008, through its Managing Director/Principal Officer.

              .... Opposite Parties

Argued by:       Sh.V.K. Diwan, Advocate for the complainants.

      Sh.Munish Gupta, Advocate for the opposite    parties.

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

Complaint case No.	:	725 of 2016
Date of Institution	:	21.10.2016
Date of Decision	:	06.02.2017

 

1. Mr.Brij Mohan aged 58 years.
2. Mr.Bipan Gaur aged 51 years.

Both sons of Mr.Kewal Krishan Gaur, residents of House No.1742, Phase 3B2, Mohali, Punjab.

….Complainants

Versus

1. M/s Omaxe Chandigarh Extension Developers Private Limited,  Regional Office at SCO No.139-140, Sector 8-C, Madhya Marg, Chandigarh U.T.-160008, through its Managing Director/Director/General Manager/Authorized Signatory.
2. M/s Omaxe Chandigarh Extension Developers Private Limited, 10 Local Shopping Complex, Kalka Ji, New Delhi-110019, its Managing Director/Director/General Manager/Authorized Signatory.

... Opposite Parties No.1 and 2.

 

3. Union Bank of India, SCO 297, Sector 20, Panchkula-134116, Haryana, through Branch Head/Chief Manager.

…..Opposite party No.3

 

Argued by:       Sh.Balwinder Singh Kalsi, Advocate for the       complainants.

      Sh.Munish Gupta, Advocate for opposite parties      no.1 and 2.

      Sh.Pavinder Singh Bedi, Advocate for opposite party no.3.

 

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

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

PER 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), as the opposite parties failed to deliver possession of the plot and flat, respectively, neither by the stipulated date nor by the time this complaint was filed, nor till the date of arguments. At the time of arguments, on 30.01.2017, it was agreed between the contesting parties, that, in view of above, both the 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.497 of 2016, titled as Ms.Parmod Khanna and another Vs. M/s Omaxe Chandigarh Extension Developers Private Limited. Complainants no.1 and 2 are mother and daughter respectively.  Complainant no.1 was to superannuate in the year 2009. To settle themselves in life, the complainants were in search of a residential plot, so that they are able to build a house thereupon and reside therein. Both were attracted by the advertisements given by the opposite parties, regarding launching of a project to provide commercial and residential units, in a township at Mullanpur, Punjab, known as ‘New Chandigarh’. Through various representations, the opposite parties highlighted salient features of the project; their spotless reputation and credentials, as business with commitment. As such, the complainants moved an application dated 27.12.2010 Annexure C-1, to purchase a plot, measuring 300 square yards, in the said project of the opposite parties. Total price of the plot, after giving some discount, was fixed at Rs.48,60,000/-, including dealer discount etc. For payment, the complainants accepted down payment plan and deposited an amount of Rs.12,15,000/- vide receipt dated 05.01.2011 Annexure C-2. An amount of Rs.9,15,000/- was paid on 25.05.2011. By 27.06.2011, the complainants had paid an amount equal to 40% of the sale consideration of the plot. To allot plot no., draw was conducted on 12.12.2011 and the complainants were allotted plot no.859. Provisional allotment letter dated 12.12.2011 Annexure C-6 was issued showing above allotment. The complainants were asked to make payment of balance 55% of price of the plot. In response thereto, an amount of Rs.27,13,419.44ps. was paid, on 11.01.2012. By that time, the complainants had paid amount, equal to 95% of price of the plot allotted. When allotting above-said plot, commitment was made to deliver possession of a developed plot within 18 months, from the date of allotment. When above-said period lapsed, delivery of possession was not in sight, the complainants visited the office of the opposite parties, numerous times, seeking possession, however, they failed to get any positive response. In the month of May 2014, orally, they were intimated that development of the area, in which the plot no.859 is located, was not possible on account of some technical reasons. They were relocated to plot no.1026A, measuring 311.52 square yards, at the same price, at which earlier plot was allotted to them. It is necessary to mention here that plot no.859 was preferentially located, whereas, reallotted plot was not so situated. Arbitrarily, price was kept the same. On 15.10.2014, another demand was raised for an amount of Rs.10,251.32ps., which was deposited on 22.10.2014. Proforma Allotment Letter/Buyer’s Agreement was given to the complainants on 06.06.2014, which was signed and delivered to the opposite parties on 08.07.2014 and after signing it, the opposite parties gave it to the complainants on 09.07.2014. The Allotment Letter/Buyer’s Agreement was issued at a belated stage. This act of the opposite parties amounted to adoption of unfair trade practice. As per Clause 24 (a) of the said Allotment Letter/Agreement, the opposite parties undertook to complete the development work within 18 months, with extended period of six months, from the date of signing of the said Allotment Letter/Agreement.

                It is grievance of the complainants that initially when plot no.859 was allotted and substantial amount was received in the year 2012, a promise was made to deliver possession within 18 months plus six months’ grace period. Very mischievously, in the year 2014, it was said by the opposite parties that now possession will be delivered within the above said period, from the date of signing of allotment letter dated 09.07.2014. Even thereafter, possession of the plot was not offered. The complainants wrote various letters for redressal of their grievance but to of no avail. Instead of delivery of possession within the stipulated period, vide letter dated 01.06.2016, another amount of Rs.64,173.12Ps. was demanded by the opposite parties.  

                When despite requests made, possession of the plot was not delivered, the instant complaint was filed seeking refund of amount paid alongwith interest thereupon; compensation for mental agony & physical harassment etc. and litigation expenses.

3.         Notice in this complaint was ordered to be issued on 24.08.2016, for 21.09.2016, upon which, reply was filed by the opposite parties on 03.11.2016, raising many preliminary objections like as per Clause 44 (c) of the Allotment Letter/Agreement, this Commission has no jurisdiction, to entertain and decide disputes between the parties, because as per above said provision, the matter needs to be referred to an arbitrator for adjudication. It was averred in the joint written reply that the complainants did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, as they being investors had purchased the plot, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. Pecuniary jurisdiction of this Commission was challenged. Territorial jurisdiction of this Commission was also challenged, by stating that no cause of action, whatsoever, has accrued within the territorial jurisdiction of this Commission. As per Clause 44 (c) of the Allotment Letter/Agreement, the Courts at Punjab and Delhi, shall have territorial Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It was pleaded that the complaint is defective, as application for filing a joint complaint was not moved by the complainants. It was further pleaded that the complaint filed is time barred.  
4.         Factual matrix of the case was not controverted. Price of the plot mentioned in the complaint and payments made by the complainants is not disputed. It is admitted that the complainants booked the plot in question and they were provisionally allotted plot no.859. It was averred that the complainants were relocated to plot no.1026A, on the request having been made by them, vide letter dated 22.05.2014 Annexure C-10.
5.         It was not denied that there was delay in issuance of final Allotment Letter/Agreement, after receipt of huge amount. It was also not denied that as per Clause 24 (a) of the Allotment Letter/Agreement, it was agreed that the opposite parties were liable to complete development works within a maximum period of 24 months from the date of signing thereof (allotment letter). Prayer was made to dismiss the complaint.
6.         On 03.11.2016, an application under Section 8 of the Arbitration and Conciliation Act, 1996, was also filed by the opposite parties, stating that this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitration for adjudication. The said application was disposed of vide order dated 07.11.2016, with the direction that question qua arbitration will be considered, at the time of final arguments in the main case.     
7.         In the rejoinder filed, the complainants reiterated all the averments, contained in the complaint and controverted those, contained in written version of the opposite parties.
8.         The parties led evidence in support of their cases.
9.         Counsel for the parties raised arguments, in tune of the facts narrated above.
10.         We have heard Counsel for the parties, in both the complaints, and have gone through the evidence and record of the cases, very carefully.
11.         Before making any reference to the merits of the case, we will like to decide an objection raised by the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainants have sought refund of amount paid i.e. Rs.49,09,045/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation to the tune of Rs.50,000/-, aggregate value whereof fell above Rs.20 lacs and below Rs.1 crore. In no way, the aggregate value of the relief claimed, exceeds Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection taken by the opposite parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
12.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from page 66, forming part of the Allotment Letter/Agreement, that the opposite parties are admittedly having their office at Chandigarh i.e. SCO 143-14, First Floor, Sector 8-C, Madhya Marg, Chandigarh. From that office only, the opposite parties were working for gain, as they have received substantial amount towards the said plot, from the complainants, vide receipts dated 11.01.2012 Annexure C-8 and C-9. Besides as above, even the Chandigarh Office, referred to above, had relocated the complainants to plot no.1026A, as is evident from letter dated 26.07.2014 Annexure C-11, on account of change in the allotment plan. On the documents, referred to above, stamp of Chandigarh office of the opposite parties is embossed. Further, detailed letters dated 06.06.2016 Annexure C-15 and 04.08.2016 Annexure C-14 written by the complainants regarding settlement of their grievance, were addressed to the Chandigarh Office of the opposite parties and received by them, there only. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

                No doubt, in the written version, an objection was also taken by opposite parties, that as per Clause 44 (c) of the Allotment Letter/Agreement, the Courts at Delhi and Punjab, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

                In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainants had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to them, to file the complaint. The submission of Counsel for the opposite parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

13.         At the time of arguments, an objection was also raised by Counsel for the opposite parties that it was mentioned in the Allotment Letter/Agreement that the Company shall make its best efforts to deliver possession of the plot within a period of 18 months, with further grace period of six months, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 24 (a) of the Allotment Letter/Agreement that possession of the plot [similar in case of possession of flat also, in connected case] will be delivered by the opposite parties, within a period of 18 months, with extended period of 6 months, by making best efforts, to the complete the development/construction work, subject to force majeure circumstances or reasons beyond the control of the opposite parties. It is not the case of the opposite parties that they encountered any force majeure circumstances, as a result whereof, they were legally entitled for extension of time for delivering possession of the plots/flats to the allottees, including the complainants.

                At the time of arguments, it was also argued that, as per terms and conditions of the said Allotment Letter/Agreement, when computing the above said period, Sundays, Saturdays, Bank Holidays, etc. are to be ignored.

                We feel that the contention raised is liable to be rejected. As stated above, in Clause 24(a) of the Agreement, it is stated that possession will be delivered within 18 months, from the date of allotment letter, with six months’ extension. It is further stated that when computing the said period all Saturdays, Sundays and Bank Holidays will be excluded. A similar issue came up for consideration before this Commission qua another project of the opposite parties, in the case of Dr.Divya Dahiya Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another, Consumer Complaint No.57 of 2016, decided on 15.07.2016, wherein, it was observed as under:-

“The first question, which falls for consideration, is, as to whether there was delay in offering possession of the plot, in question, and if so, to what extent. The allotment letter for independent floor in Row-Housing Project “Silver Birch” in the project of the Opposite Parties (Annexure C-4) was issued to the complainant on 30.08.2011. As per Clause 31(a) of the allotment letter, the Opposite Parties were to complete the development of the unit within 24 months or within an extended period of six months from the date of start of construction, subject to force majeure conditions. Since allotment letter is dated 30.08.2011, by computing 24 months plus 6 months’ period, the Opposite Parties were bound to deliver possession of the plot, in question, by 01.03.2014. The Opposite Parties have stated that period was to be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body. Apparently, for seeking six months extension beyond 24 months or beyond six months extended period, the Opposite Parties owe an explanation, if the delay was on account of force majure conditions but nothing by way of cogent evidence to this effect has been placed on record. Thus, when no explanation for extension of six months period has been furnished, the Opposite Parties at the most could be allowed one out of the two benefits i.e. either six months extension beyond 24 months or period on account of Sundays/Holidays etc. This Commission in Consumer Complaint No.153 of 2015 titled ‘Mr. Madan Lal Taneja and another Vs. M/s Omaxe Chandigarh Extension Developers P. Ltd.’ decided on 03.11.2015, facts of which were almost identical, held that Opposite Parties were to hand over possession within 30 months from the date of start of construction. Thus, the possession of the unit, in question, was to be delivered by 01.03.2014.”

 

14.         Similar view was reiterated by this Commission, in a case titled as Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, decided on 16.08.2016 and many other cases, thereafter. It was specifically held that when there is no explanation of getting extension of 6 months’ period to deliver possession beyond the stipulated date, the benefit of exclusion of Saturdays, Sundays, Bank Holidays etc. cannot be given. Thus, under these circumstances, since as per Clause 24 (a) of the Allotment Letter/Agreement, the opposite parties were bound to deliver possession of the developed plot, within a maximum period of 24 months from the date of execution of the same, as such, time was unequivocally made the essence of contract. In view of above, the plea of the opposite parties in this regard also stands rejected.
15.          The next question, that falls for consideration, is, as to whether, the complainants fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that the mere bald objection of the opposite parties that the complainants  had purchased the plot, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices, does not carry any weight and is liable to be rejected. It has been mentioned by the complainants, in para no.1 of their complaint that the said plot was purchased by them to fulfil their pressing needs of a house. On the other hand, nothing contrary to this, has been proved by the opposite parties, by placing on record, any document. Even otherwise, the mere fact that it was a residential plot, which was allotted, in favour of the complainants, was sufficient to prove that it was to be used for the purpose of residence, by the complainants. There is nothing, on the record, that the complainants are property dealers, and deal in the sale and purchase of property. Furthermore, 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. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, therefore, being devoid of merit, is rejected.  
16.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.49,09,045/-, deposited by them. It is an admitted fact that the opposite parties are unable to deliver possession of the plot, in question, for want of development and basic amenities etc.  and firm date of delivery of possession of the plot, could not be given to them (complainants). (Same is the case, in connected case, regarding possession of flat therein to the complainants). Promised date to deliver possession of the plot has already expired and now it is January 2017. At the time of arguments, on raising query by this Commission, Counsel for the opposite parties very hesitantly brought to our notice that part of the project, in which even relocated plot is situated, is not yet developed. At the same time, no exact date of delivery of possession of the flat, in connected complaint, was apprised to this Commission. It was only said that the opposite parties are making best efforts, in the matter. He also failed to give any positive commitment, as to within how much time, possession of the fully developed plot or fully constructed flat, can be given. The complainants cannot be made to wait for an indefinite period, for delivery of possession of the plot purchased by them. Non-delivery of possession of the plot, in question, by the stipulated date, is a material violation of the terms and conditions of the Allotment Letter/Agreement, on the part of the opposite parties. In a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission held as under:-

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

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

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar   MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, 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, the National Commission, held as under:-

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

                However, in the present cases, the situation is worst, as possession has not been even offered to the complainants, what to speak of delay in offer thereof. In view of above, it is held that since there was a material violation on the part of the opposite parties, in not offering and handing over possession of the developed plot/flat by the stipulated date or even till date, the complainants were at liberty to seek refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

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

18.         As per facts on record, the complainants filed an application to purchase a plot measuring 300 square yards and deposited an amount of Rs.12,15,000/- vide receipt dated 05.01.2011. Further amount of Rs.9,15,000/- was paid on 25.05.2011. By 27.06.2011, the complainants had paid 40% of the amount, towards price of the plot. Thereafter, another amount of Rs.27,13,419.44ps. was paid on 11.01.2012. By that time, having received more than 90% of the total sale consideration of the plot, even final Allotment Letter/Buyer’s Agreement was not got signed from the complainants, by the opposite parties. Proforma Allotment Letter was sent for signatures to the complainants on 06.06.2014 i.e. after a gap of about 29 months, from the date of making initial payment. It was signed by the complainants and delivered to the opposite parties on 08.07.2014 and after signing it, the opposite parties delivered it to the complainants on 09.07.2014. Such like Allotment Letter/Agreement, is supposed to be presented within, say two to three months, from the date of booking, but it was not so done. As such, it can safely be said that Allotment Letter/Agreement was got signed belatedly. The said act would amount to unfair trade practice on the part of the opposite parties. It was also so said by this Commission in Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, decided on 16.08.2016. However, since we are ordering refund of the amount paid, alongwith interest, from the respective dates of deposits, as such, we are not granting any additional compensation, for the said delay, on the part of the opposite parties.
19.         To defeat claim of the complainants, a plea was also taken by the opposite parties to the effect that since the complainants themselves vide letter dated 22.05.2014 Annexure C-10 sought relocation, which was done in the year 2014, as such, now they cannot raise any grouse, regarding delay in delivery of possession of the plot. It may be stated here that perusal of contents of letter Annexure C-10 clearly goes to reveal that  it has been categorically stated by the complainants in the said letter that since they have found that no development work has started in the pocket, where plot no.859 was allotted to them, in the year 2011, as a result whereof they are not able to construct a house and live therein, as such, they may be relocated to some other plot, which is ready for possession. The said letter was never replied by the opposite parties. However, on 26.07.2014 vide letter Annexure C-11, the complainants were relocated to plot no.1026A measuring 311.52 square yards, only on account of certain changes made by the opposite parties, in the allotment plan. Sequence of events, make it very clear that it was not account of request having been made by the complainants, but it was on account of change in allotment plan, that the opposite parties relocated them to plot no.1026A, and that too, after more than three years of allotment, meaning thereby that the complainants were kept in dark, that plot no.859, which was initially allotted to them, of which almost 95% of the sale consideration has been received, was not even in existence, at the site. This proves that deficiency in providing service and adoption of unfair trade practice, on the part of the opposite parties is writ large.  The plea taken by the opposite parties, in this regard, therefore being devoid of merit, stands rejected.
20.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is not in dispute that an amount of Rs.49,09,045/-, was paid by the complainants, without getting anything, in lieu thereof.  Possession of even relocated plot was not offered and delivered to the complainants. 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. for the first month and thereafter @24% p.a.,  as per Clause 14 of the Allotment Letter/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 (2014) 6 SCC 335). In view of above, the  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.49,09,045/- alongwith interest, from the respective dates of deposits till realization.  
21.          Counsel for the opposite parties also argued that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitration for adjudication. We are not going to agree with the argument raised. Reply in this case was filed on 03.11.2016. Thereafter, an application was filed in the matter, which was disposed of on 07.11.2016, ordering that question qua applicability of provisions of Arbitration and Conciliation Act, 1996, will be taken up at the time of final hearing of dispute. At that stage, whether such application lies or not is a moot question. Be that as it may, this question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

25.        The next question, that falls for consideration, is, as to whether, 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.

26.      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.”

27.                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.”

28.      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.

29.       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.”

30.   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.

31.        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.

32.        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 party. 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.

33.        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 plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, 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.

34.        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.”

35.   In  view of the above, the plea taken by the opposite party, 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.”

                In view of the above, the plea taken by the opposite parties in this regard, being devoid of merit, is rejected.

22.         To defeat the claim of the complainants, an objection was also raised that since application for filing a joint complaint is not filed, as such, the complaint is liable to be dismissed on this ground alone. We are not going to agree with the contention raised.  From the perusal of contents of the complaint, it reveals that the same has been signed by both the complainants, who are mother and daughter respectively. It was for this Commission, to satisfy itself, as to whether, the complaint filed is maintainable or not. Once, notice has been issued by this Commission, in this complaint, permission is deemed to have  been given to the complainants to file this complaint, jointly.  Even otherwise, the proceedings before the Consumer Fora, are summary, in nature. The Consumer Protection Act, 1986, is a beneficial legislation, to provide speedy, inexpensive and hassle free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. In view of above, the plea taken by the opposite parties stands rejected.
23.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not.  It may be stated here that since it is an admitted case that offer of possession of the plot/flat, in question, in both the complaints, could not be made till date for want of development/construction works, and on the other hand, amount deposited was also not refunded to the complainants alongwith interest, as such, there is continuing cause of action, in their favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by limitation. The submission of Counsel for the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
24.         Another objection raised in consumer complaint no.725 of 2016, that because since opposite party no.3 has unnecessarily been impleaded as a party to the complaint, as such, the complaint is liable to be dismissed, on this ground, is devoid of merit. It may be stated here that, in no way, impleading of opposite party no.3 has made any loss to opposite parties no.1 and 2. Since, the complainants have obtained loan from opposite party no.3, for making payment towards the said flat, they might have impleaded it as necessary party to the complaint, so that there is no dispute with regard to the same (payments made). It is settled law that the object of the rule is to bring on record all the persons, who are parties to the dispute, relating to the subject-matter, so that the dispute may be determined in their presence at the same time, without any protraction, inconvenience and to avoid multiplicity of proceedings. In Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru (1995) 3 Supreme Court Cases 147, The Hon`ble Supreme Court observed as under; 

“though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the court must be satisfied that the presence of the party to be added, would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party-defendant is not a substantive right but one of procedure and the court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings”. 

 

                In view of above, the objection taken by the opposite parties, in this regard, stands rejected.

25.         No other point, was urged, by the contesting parties.
26.         For the reasons recorded above, both the complaints are partly accepted with costs, in the following manner:-

In consumer complaint bearing no.497 of 2016, the opposite parties (ops no.1 and 2), jointly and severally are directed as under: -

1. To refund the amount Rs.49,09,045/-, to the complainants, alongwith interest @12% p.a., from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2.50 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.

 

In consumer complaint bearing no.725 of 2016, opposite parties no.1 and 2, jointly and severally are directed as under: -

1. To refund the amount Rs.40,28,275.63ps. to the complainants, alongwith interest @12% p.a., from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2.50 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.
4. Complaint against opposite party no.3 is dismissed with no order as to costs.

27.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii), in both the complaints aforesaid, shall be made, within a period of 02 (two) months, 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 @15% p.a., instead of @12%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the dates of filing of respective complaints, till realization.
28.         However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said plot/flat, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants), in their respective case.
29.         Certified Copies of this order be placed in the connected case file.
30.         Certified Copies of this order be sent to the parties, free of charge.
31.         The file be consigned to Record Room, after completion.

Pronounced.

06.02.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	725 of 2016
Date of Institution	:	21.10.2016
Date of Decision	:	06.02.2017

 

1. Mr.Brij Mohan aged 58 years.
2. Mr.Bipan Gaur aged 51 years.

Both sons of Mr.Kewal Krishan Gaur, residents of House No.1742, Phase 3B2, Mohali, Punjab.

….Complainants

Versus

1. M/s Omaxe Chandigarh Extension Developers Private Limited,  Regional Office at SCO No.139-140, Sector 8-C, Madhya Marg, Chandigarh U.T.-160008, through its Managing Director/ Director/General Manager/Authorized Signatory.
2. M/s Omaxe Chandigarh Extension Developers Private Limited, 10 Local Shopping Complex, Kalka Ji, New Delhi-110019, its Managing Director/Director/General Manager/Authorized Signatory.

... Opposite Parties No.1 and 2.

 

3. Union Bank of India, SCO 297, Sector 20, Panchkula-134116, Haryana, through Branch Head/Chief Manager.

…..Opposite party No.3

 

Argued by:       Sh.Balwinder Singh Kalsi, Advocate for the       complainants.

      Sh.Munish Gupta, Advocate for opposite parties      no.1 and 2.

      Sh.Pavinder Singh Bedi, Advocate for opposite party no.3.

 

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

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.497 of 2016, titled as Ms.Parmod Khanna and another Vs. M/s Omaxe Chandigarh Extension Developers Private Limited., this complaint has been partly accepted with cost. 

2.         Certified copy of the order passed in consumer complaint bearing no. 497 of 2016, be placed on this file.
3.         Certified copies of the main order, alongwith this order be sent to the parties, free of charge.
4.         The file be consigned to Record Room, after completion.

 

 

 

Sd/-                                 Sd/-                                         Sd/-

 

(DEV RAJ) MEMBER

(JUSTICE JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

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