Chandigarh

StateCommission

CC/764/2017

Mrs. Palvinder Kaur - Complainant(s)

Versus

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

Kabir Sarin, Adv.

26 Mar 2018

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	764 of 2017
Date of Institution	:	31.10.2017
Date of Decision	:	26.03.2018

 

Mrs.Palvinder Kaur, w/o Mr.Sukhwinder Singh, r/o Flat No.5123/3, Modern Housing Complex, Manimajra, Chandigarh U.T. through Sh.Tejinder Singh s/o Sh.Harbhajan Singh, r/o House No.18/A, Sector 30/B, Chandigarh, real brother and Attorney vide registered General Power of Attorney dated 05.07.2017.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Extension Developers Private Limited, #10, Local Shopping Complex, Kalkaji, New Delhi-110019.

 

Branch Office at:-

M/s Omaxe Chandigarh Extension Developers Private Limited, SCO No.139-140, 1^st Floor, Sector 8C, Chandigarh U.T.-160008.

Through its Chairman and Managing Director Sh.Rohtas Goel.

              .... Opposite Party

 

Complaint 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.Kabir Sarin, Advocate for the complainant.

      Sh.Ashim Aggarwal, Advocate for the opposite party.

 

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The facts, in brief, are that to settle herself in life, the complainant was in search of a residential plot, so that she is able to build a house thereupon and reside therein. She was attracted by the advertisements given by the opposite party, regarding launching of a project to provide residential units/plots, in a township at Mullanpur, Punjab, known as Omaxe ‘New Chandigarh’. Through various representations, the opposite party highlighted salient features of the said project. As such, the complainant moved an application dated 06.12.2010, to purchase a plot, measuring 300 square yards, in the said project, on making payment of Rs.13,50,000/- vide receipt dated 06.12.2010 Annexure C-1. Basic sale price of the plot was fixed at Rs.52,24,840/-, plus other charges like club charges, interest free maintenance security etc. She opted for time linked payment plan, which is placed on record at page 63 of the file. To allot plot no., draw was conducted and the complainant was allotted plot no.558EA, measuring 301.38 square yards, in the said project. The complainant was asked to make payment of balance price of the plot. It was pleaded that despite a fact that more than 70% of the amount towards price of the said plot was paid by the complainant, yet, allotment letter/agreement, in respect thereto, was not sent to her for signatures. Upon persistent follow ups, allotment letter, in respect of the said plot was ultimately executed on 31.12.2012. It is specific case of the complainant that, in this manner, the opposite party utilized the amount paid to the extent of more than about 70% of the basic sale price, for about two years, without providing anything to the complainant. It was stated that execution of allotment letter, at such a belated stage, amounted to adoption of unfair trade practice, on the part of the opposite party.

                As per Clause 24 (a) of the said Allotment Letter, the opposite party undertook to complete the development work within 18 months, with extended period of 6 months, from the date of signing of the same i.e. latest by 30.12.2014 subject to force majeure circumstances. However, no such force majeure circumstances were ever faced by the opposite party.  

                It is grievance of the complainant that despite the fact that by July 2014, 95% of the sale consideration stood paid by her, yet, possession of the plot, in question, was not offered by the stipulated date. Numerous visits made by the complainant, to the office of the opposite party, with a request to  complete development and offer possession of the plot, in question, failed to yield any result. Visits made to the project site in August 2017, revealed that there was no development and basic amenities were missing. It is the positive case of the complainant that even in the absence of development at the project site, the opposite party vide letter dated 23.08.2017 Annexure C-5 offered possession of the plot, in question, to her. It was stated that the said offer letter was issued just with a view to extract the remaining 5% amount from the complainant, even in the absence of development work at the project site.

                By alleging that the aforesaid acts of the opposite party amounted to deficiency in providing service and also adoption of unfair trade practice, the present complaint has been filed by the complainant seeking  refund of amount paid alongwith interest thereupon; compensation for mental agony & physical harassment, litigation expenses. etc.

2.         In the reply filed by the opposite party, many preliminary objections were taken, to defeat genuine claim of the complainant. It was pleaded that as per Clause 44 (c) of the Allotment Letter/Agreement, this Commission has no jurisdiction, to entertain and decide dispute 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 written reply that the complainant did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, as she being investor 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 the complainant has not led into evidence nor exhibited the power of attorney. It was further pleaded that the complaint filed is time barred.  
3.         On merits payments made by the complainant as mentioned in the complaint and execution of the allotment letter was admitted. It was stated that the plot, in question, was, in the first instance, allotted to one Mrs.Tajinder Kaur, which was later on purchased by the complainant, allotment rights whereof were assigned in her favour vide endorsement dated 09.01.2012. It was denied that possession of the plot was to be delivered on or before 30.12.2014. It was further stated that since the disputed plot falls under the category of immoveable property, as such, time was not the essence of contract.  It was stated that as per Clause 24 (a) of the Allotment Letter/Agreement, it was agreed that the opposite party shall only make best efforts to complete development works within a maximum period of 24 months from the date of signing thereof (allotment letter). It was further stated that the said period was to be computed excluding Saturdays, Sundays and Bank Holidays, and only thereafter, possession of the plot was to be delivered, as such, no definite period was assigned for the same. It was further stated that the complainant was defaulter in making payment, for which various reminders were sent to her. It was averred that possession of the plot was offered to the complainant, vide letter dated 23.08.2017, upon completion of all amenities as per allotment letter and that too after obtaining partial completion certificate dated 28.04.2017. It was further stated that, in case, the complainant still wanted refund of the amount deposited; the same would amount to surrender of the plot and would attract forfeiture charges.  Prayer was made to dismiss the complaint.
4.         On 16.01.2018, an application under Section 8 of the Arbitration and Conciliation Act, 1996, was also filed by the opposite party, stating that this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication. The said application was disposed of vide order dated 18.01.2018, with the direction that question qua arbitration will be considered, at the time of final arguments in the main case.
5.         The parties led evidence in support of their case.
6.         Counsel for the parties raised arguments, in tune of the facts narrated above.
7.         We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully.
8.         Before making any reference to the merits of the case, we will like to decide an objection raised by the opposite party that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  Relevant part of the said order reads thus:-

“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. ”

In the present case also, total value of the plot, in question, i.e. Rs.57,15,491.73ps., plus compensation claimed by way of interest @12% p.a. on the deposited amount of Rs.52,33,598/-and also Rs.3 lacs, for mental agony and physical harassment, if taken into consideration, in no way, exceeds Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection taken by the opposite party, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

9.         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 her. In the instant case, it is evident that the Allotment Letter/Agreement,  was executed at Chandigarh, as all its pages bore the round stamp of Chandigarh Office of the opposite  party. Furthermore, even the letter dated 23.08.2017 Annexure C-5 and statement of account of the even date (at page 69) of the file, also reveal that the same were issued by Chandigarh Office of the opposite party, as the said documents also bore the same stamp, as referred to above. Not only as above, even the request from Annexure OP-3, for transfer of the said plot in favour of the complainant was also received by the Office of the opposite party at Chandigarh. There are number of other documents placed on record by the opposite party itself which reveal that the same were issued by it, from Chandigarh Office. 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 party, in its 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 party, 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 complainant had agreed to the terms and conditions of the allotment letter, limiting the Jurisdiction of 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 her, to file the complaint. The submission of Counsel for the opposite party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

10.         It is evident from record that the plot, in question, was purchased by the complainant, in resale from one Mrs. Tajinder Kaur, vide endorsement dated 09.01.2012, which fact is not disputed. The said plot had been allotted in favour of Mrs.Tajinder Kaur, vide provisional allotment letter dated 12.12.2011 Annexure OP-2. It is also evident from record that allotment letter was executed between the complainant (Palvinder Kaur) and the opposite party on 31.12.2012 i.e. after one year of allotment of the said plot. As per Clause 24 (a) of the said allotment letter, the opposite party committed to complete development of the plot/project within 18 months with extended period of 6 months from 31.12.2012 i.e. latest by 30.12.2014, which was not so done.

                At the time of arguments, Counsel for the opposite party contended that since 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. The contention raised is devoid of merit. It may be stated here that once a specific period of 18 months, with extended period of 6 months was mentioned in Clause 24 (a) of the Allotment Letter/Agreement with commitment of best efforts, to complete the development/construction work, now at this stage, the opposite party cannot wriggle out of the same. Other than this Clause contained in the allotment letter, there is no Clause, which speaks about the period/date for delivery of possession of the plot, to the complainant. A clear-cut promise was made to deliver possession of the plot, within a maximum period of 24 months. It is not the case of the opposite party that it encountered any force majeure circumstances, as a result whereof, it was legally entitled for extension of time for delivering possession of the plots to the allottees, including the complainant.

                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 allotment letter, 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.”

 

                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, in the present case also, since as per Clause 24 (a) of the Allotment Letter/Agreement, the opposite party was 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 party in this regard stands rejected.

                At the same time, it is also submitted that the opposite party cannot evade its liability, merely by saying that since the words ‘best efforts’ were mentioned in the allotment letter, for delivery of possession of the plot, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the allotment letter/Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the plot or apartment is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/allotment letter, 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 plots/unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand 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”.

       

11.          Another objection taken by the opposite party that since the plot, in question, falls under the category of immovable property, as such, in that event also, time is not to be considered as essence of the contract, is also bereft of merit, in view of ratio of judgment titled as Saradamani Kandappan vs S. Rajalakshmi & Ors., Civil Appeal Nos. 7254-7256  of 2002 &                                      and  Contempt Petition (C) No. 28-29 of 2009, decided on 4^th  July, 2011, wherein the Hon`ble Supreme Court held as under:-

“A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by this court in K.S. Vidyanadam and Others vs. Vairavan - (1997) 3 SCC 1 (by Jeevan Reddy J. who incidentally was a member of the Constitution Bench in Chand Rani). This Court observed:

"It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect.

In the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973. .........We cannot be oblivious to the reality and the reality is constant and continuous rise in the values of urban properties - fuelled by large scale migration of people from rural areas to urban centres and by inflation.

Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so."

(emphasis supplied) Therefore there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices. We do not propose to undertake that exercise in this case, nor referring the matter to larger bench as we have held on facts in this case that time is the essence of the contract, even with reference to the principles in Chand Rani and other cases. Be that as it may.”

 

12.         The next question, that falls for consideration, is, as to whether, the complainant 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 party that the complainant 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 complainant, in her complaint, that the said plot was purchased by her for her residential purpose. On the other hand, nothing contrary to this, has been proved by the opposite party, by placing on record, any document. Mere fact that the complainant is allegedly owning some other house also, does not debar her to purchase a plot, in the project of the opposite party or somewhere else. There is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property, on regular basis. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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. Not only as above, under similar circumstances, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

 

                Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. 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 party, therefore, being devoid of merit, is rejected.  

13.          To defeat the claim of the complainant, an objection was also raised that since the complainant herself, has not led evidence, as such, the complaint is liable to be dismissed on this ground alone.

                We are not going to agree with the contention raised.  It may be stated here that, Sh.Tejinder Singh, General power of attorney holder  is real brother of the complainant. Contents of the general power of attorney placed on record clearly reveals that the complainant has appointed her brother named above, to do all acts and things, including the act to pursue the entire court proceedings, in respect of the plot, in question. 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. It was also so said by the Hon’ble Supreme Court of India, in the case of V. Kishan Rao  Vs, Nikhil Super Speciality Hospital and another, Civil Appeal NO.2641_ OF 2010, (Arising out of SLP(C) No.15084/2009), decided on March 8, 2010. Relevant contents of the said order reads thus:-

“The Forum overruled the objection, and in our view rightly, that complaints before consumer are tried summarily and Evidence Act in terms does not apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in (2009) 9 SCC 221 that provisions of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice”

                In view of above, plea taken by the opposite party, in this regard,  stands rejected.

14.         Now, we will deal with the objection, raised by the opposite party, that in the face of existence of provision 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.

               This objection has been raised in the written statement filed by the opposite party, by placing reliance on Clause 44 (c) contained in the allotment letter. It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as 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), 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), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

                In this view of the matter, objection raised by the opposite party stands rejected.

15.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.52,33,598/-, deposited by her towards the said plot. It is an admitted fact that the opposite party was unable to deliver possession of the plot, in question, for want of development and basic amenities etc.  by the stipulated date i.e. latest by 30.12.2014. Not even a single reason has been assigned by the opposite party, as to what stopped it from completing the development of the project by the said date. Despite the fact that allotment in respect of the plot, in question, was made on 12.12.2011 and, thereafter, allotment letter was executed only on 31.12.2012 i.e. after about a year, thereby gaining a period of one-year totaling three years, even then the opposite party failed to complete the development by 30.12.2014.

                At the time of arguments, Counsel for the opposite party contended that since possession of the plot, in question, was offered to the complainant, on 23.08.2017, but she failed to take the same, as such, she cannot claim refund of the amount paid, alongwith other reliefs, as mentioned in the complaint. In the instant case, admittedly possession of the plot, in question was to be delivered by 30.12.2014, which infact was offered only on 23.08.2017 i.e. after a delay of about more than two and a half years. Irrespective of the fact that the possession so offered to the complainant, is genuine or not, now the question, arises, as to whether, the complainant is bound to accept the same or not.

                It may be stated here that, it is well settled law that non-delivery of possession of the residential units/plots, in question, by the stipulated date, amounts to material violation of the terms and conditions of the Allotment Letter/Agreement, on the part of the builder and it is not obligatory upon the buyer to accept the possession after delay (in the present case long delay of more than two and a half years). In a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was 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.”

 

Not only as above, 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.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, 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”.

               

The principle of law laid down in the aforesaid cases, is fully applicable to the present case. In view of above, it is held that since there was a material violation on the part of the opposite party, in not offering and handing over possession of the developed plot/flat by the stipulated date or thereafter with a petty delay, the complainant was at liberty to seek refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint, even if possession of the plot was offered after a long delay of more than two and a half years.

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

16.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.52,33,598/-, was paid by the complainant. The said amount has been used by the opposite party for its own benefit. There is no dispute that for making delayed payments, the opposite party was 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 complainant is certainly entitled to get refund of the amount deposited by her to the tune Rs.52,33,598/- alongwith interest, from the  actual dates of deposits made by her i.e. from the date of endorsement onwards, till realization, . 
17.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not, as alleged by the opposite party. It may be stated here that it is very strange that on the one hand, the opposite party took an objection in its written version to the effect that time was not the essence of contract, but in the same breath in para no.9 an objection was taken that since cause of action accrued to the complainant in December 2014, when possession of the plot was to be offered, as such, the complaint filed is time barred.

                It may be stated here that, since it is an admitted fact that possession of the plot, in question was offered to the complainant, after a long time, for the first time, only on 23.08.2017, as such, there was a continuing cause of action, in her favour, till that date (23.08.2017) 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).  As such, cause of action i.e. period of 2 years will be taken from 23.08.2017, meaning thereby this complaint having been filed on 31.10.2017 is not at all barred by limitation. The submission of Counsel for the opposite party, in this regard, being devoid of merit, must fail, and the same stands rejected.

18.         It was argued by Counsel for the opposite party that since it a case of surrender of plot, as such, forfeiture clause shall be attracted. It may be stated here that, in the present case, forfeiture Clause was to be made applicable only if it is proved that the opposite party was ready to deliver possession of the plot, within the stipulated period as promised, but the complainant, wanted to rescind the contract, which is not the case of the opposite party, in this complaint. This Commission, while giving detailed findings, has already held that it was on account of deficient services and adoption of unfair trade practice, that the complainant is entitled to refund of the amount deposited alongwith interest and compensation. As such, the plea taken by the opposite party, in this regard, stands rejected.
19.         No other point, was urged, by the contesting parties.
20.         For the reasons recorded above, this complaint is partly accepted with costs, with following directions to the opposite party:-

1. To refund the amount Rs.52,33,598/-, to the complainant, alongwith interest @12% p.a., starting from the dates of deposit of respective amounts when endorsement was made in her favour i.e. from 09.01.2012 onwards.
2. To pay compensation, in the sum of Rs.1,50,000/-, 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.33,000/- to the  complainant.

 

21.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii), 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 09.01.2012 onwards, and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing this complaint, till realization.
22.         However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said plot, it will have the first charge of the amount payable, to the extent, the same is due to be paid by her (complainant).
23.         Certified Copies of this order be sent to the parties, free of charge.
24.         The file be consigned to Record Room, after completion.

Pronounced.

26.03.2018

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[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

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(DEV RAJ)

MEMBER

 

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(PADMA PANDEY)

        MEMBER

 Rg