Chandigarh

StateCommission

CC/749/2017

Ms. Poonam Sood - Complainant(s)

Versus

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

V K Diwan, Adv.

31 Dec 2018

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	749 of 2017
Date of Institution	:	23.10.2017
Date of Decision	:	31.12.2018

 

1. Ms.Poonam Sood wife of Sh.Sateekshan Sood aged about 56 years, resident of House No.1113-A, Sector 20-B, Chandigarh.
2. Sh.Sateekshan Sood son of Sh.Lakshmi Chand Sood, aged about 61 years, resident of House No.1113-A, Sector 20-B, Chandigarh.

……Complainants

V e r s u s

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., having 10 Local Shopping Complex, Kalka Ji, New Delhi-110019 (Corporate Office), through its Managing Director/Principal Officer.
2. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., S.C.O. No.139-140, 1^st Floor, Sector 8-C, Chandigarh-U.T.-160008, through its Director/Principal Officer.

              .... Opposite Parties

 

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

      Sh.Sanjeev Sharma, Advocate for the opposite parties.

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

 

Complaint case No.	:	518 of 2017
Date of Institution	:	05.07.2017
Date of Decision	:	31.12.2018

 

 Sukhdev Singh & Sons (HUF), through its Karta Jaskaran Singh s/o Lt. Sh.Sukhdev Singh, r/o H.No.2075/5, Lehal Colony, Patiala.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., 10 L.S.C. Kalkaji, New Delhi, through its Authorized Representative.

 

2^nd Address:- S.C.O. 139-140, Sector 8-C, Chandigarh.

              .... Opposite Party

 

Argued by:       Sh.Tarun Gupta, Advocate for the complainant.

      Sh.Sanjeev Sharma, Advocate for the opposite party.

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

 

Complaint case No.	:	517 of 2017
Date of Institution	:	05.07.2017
Date of Decision	:	31.12.2018

 

Jaskaran Singh son of Lt. Sh.Sukhdev Singh, r/o H.No.2075/5, Lehal Colony, Patiala.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., 10 L.S.C. Kalkaji, New Delhi, through its Authorized Representative.

 

2^nd Address:- S.C.O. 139-140, Sector 8-C, Chandigarh.

              .... Opposite Party

 

Argued by:       Sh.Tarun Gupta, Advocate for the complainant.

      Sh.Sanjeev Sharma, Advocate for the opposite party.

 

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

 

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

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MRS.PADMA PANDEY, MEMBER

                        SH.RAJESH K. ARYA, MEMBER

 

PER PADMA PANDEY, MEMBER

                By this order, we propose to dispose of aforesaid three consumer complaints, filed by the respective complainants. Arguments in the said complaints were heard in common, on 04.12.2018. In all the complaints, referred to above, issues involved, except minor variations, here and there, of law and facts are the same. As such, during arguments, it was agreed by the contesting parties, that all the three complaints can be disposed of, by passing a consolidated order.  

2.         To dictate order, facts are being taken from Consumer Complaint bearing No.749 of 2017 titled as Ms.Poonam Sood and another Vs. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and another. The complainants have filed this complaint seeking directions to the opposite parties to deliver possession of plot bearing no.OCE/11/1009, measuring 321.35 square yards, purchased in their project, named ‘Omaxe New Chandigarh’, Mullanpur, Punjab, basic sale price whereof was fixed at Rs.54,76,456.14ps. In addition to that amount, the complainants were also required to pay EDC, PLC etc. It is the case of the complainants, they had applied for a plot measuring 300 square yards, yet, later on, its area was arbitrarily increased by the opposite parties, to 321.35 square yards, resulting into increase of basic sale price and other charges. It is definite case of the complainants that despite the fact that as per demands raised by the opposite parties, from time to time, they have paid substantial amount of Rs.52,72,633.32ps.  towards price of the said plot, by 07.06.2014, yet, they failed to deliver possession thereof, within a period of 18 months plus 6 months totalling 24 months from the date of execution of the agreement dated 17.08.2012 i.e. on or before 16.08.2014. Thereafter also, another amount of Rs.4 lacs was paid by the complainants on 10.10.2016 totalling to Rs.56,72,633.32ps., towards price of the said plot.  Number of requests made by the complainants, to the opposite parties, in the matter, did not yield any result. It was stated that vide letter dated 11.08.2017, Annexure C-16, the opposite parties offered possession of the plot, in question. Alongwith the said letter, they also sent statement of accounts, wherein, they demanded an amount of Rs.7,23,577/-. Out of the said amount, an amount of Rs.2,31,217.46ps. was levied as delayed payment interest. As such, the complainants took up the matter, with the opposite parties, and requested them to reconcile the demand, but to no avail. Under compelling circumstances, they served legal notice dated 26.08.2017 Annexure C-15 upon the opposite parties. Vide the said legal notice, the complainants requested the opposite parties to refund the amount paid, alongwith interest etc. However, thereafter, the complainants sent detailed calculation sheet to the opposite parties, vide letter dated 23.09.2017, Annexure C-18, with a request to rectify the demand raised. Request was also made in the said letter that since the complainants are interested in taking possession of the plot, in question, as such, their request for seeking refund of amount paid towards the said plot, raised vide the legal notice, referred to above, be ignored.  Further request was made to the opposite parties, to make payment of compensation towards delay in offering and delivering possession of the plot, in question. However, without considering request of the complainants, the opposite parties again sent letter dated 28.09.2017, Annexure C-19, wherein demand of Rs.7,36,527.70ps. was raised. However, out of the said amount, the complainants paid an amount of Rs.4 lacs, through RTGS on 09.10.2017, as cheque issued in the said amount, could not be honoured, on account of signatures mismatch. The balance amount of Rs.92,360/- was payable at the time of actual offer of possession of the plot, in question. It was further stated that the opposite parties were requested, a number of times, to redress the grievance of the complainants, but to no avail. By stating that the aforesaid act of the opposite parties amounted to deficiency in providing service and adoption of unfair trade practice, present complaint has been filed by the complainants.
3.         In the written reply filed by the opposite parties, it was stated that the complainants did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act. They are investors. They purchased the said plot, in order to resell the same, to earn profits in future. It was further stated that in the face of existence of arbitration Clause in the allotment letter, 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. Pecuniary and territorial jurisdiction of this Commission was challenged. It was stated that since as per Clause 44 (c) of the Agreement, it was mutually agreed to between the parties that the Courts at Punjab and Delhi only, shall have Jurisdiction, to entertain and adjudicate the dispute(s) in respect of the plot(s), in dispute, as such, jurisdiction of this Commission is barred. It was further stated that assuming some part of cause of action arose in Chandigarh, does not confer territorial jurisdiction of this Commission. It was pleaded that since, no definite period was committed to hand over possession of the plot, in question, and it falls under the category of immovable property, as such, time was not to be considered as essence of the contract. In the same breath, it was pleaded that the complaint filed is barred by time, as there is no continuing cause of action, in favour of the complainants.  
4.         Purchase of plot, in question, by the complainants is not disputed. Payments made by the complainants, as mentioned in the complaints were also not disputed. It was stated that even in the application form submitted by the complainants, area of the plot is found mentioned as 321.35 square yards, as such, contention raised by the complainants that the opposite parties have increased the same, later on, is incorrect. It was also not seriously disputed that possession of the plot was to be delivered within a period of 18 months plus 6 months totalling 24 months from the date of execution of the agreement dated 17.08.2012. It was stated that the said period was to be computed excluding Saturdays, Sundays and Bank Holidays. However, it was said that since no definite period was mentioned in the agreement and as per the said Clause, Company only offered to put its best efforts to complete development, within the said period, as such, time is not to be considered as essence of the contract. It was averred that the complainants defaulted in making payment towards price of the said plot. Many reminders were sent to them, in the matter. Possession of the plot was offered to the complainants vide letter dated 11.08.2017, after completion of all basic amenities and development at the project site and that too after obtaining partial completion certificate on 28.04.2017, from the Competent Authorities. The opposite parties are bound to pay compensation for the period of delay in offering possession of the plot, in question, strictly as per terms and conditions of the Agreement. Prayer was made to dismiss the complaint.
5.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite parties.
6.         The parties led evidence in support of their cases.
7.         We have heard the contesting parties and have gone through the evidence and record of the cases, very carefully.
8.         First, we will like to decide with 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. 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.  In the present case also, total value of the plot, in question, i.e. Rs.57,73,576.81ps. (as is evident from state of account at page 81 of the file), plus compensation claimed by way of interest @12% p.a. on the deposited amount of Rs.56,72,633.32ps. and also Rs.1 lac, 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 this 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.
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 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 that the Allotment Letter/Agreement dated 17.08.2012, was executed at Chandigarh, as all its pages bear the round stamp of Chandigarh Office of the opposite parties. Furthermore, even the possession letter dated 11.08.2017 Annexure C-16 and statement of account of the even date (at page 81 of the file), also reveal that the same were issued by Chandigarh Office of the opposite parties, as the said documents also bear the same stamp, as referred to above. There are number of other documents placed on record, which reveal that the same were issued by the opposite parties, from Chandigarh Office, as Regional Office Address of the Company has been mentioned as SCO 139-140, Sector 8C, Madhya Marg, Chandigarh. Even in the written statement filed by the opposite parties, it has been candidly admitted that some part of cause of action has arisen at Chandigarh. 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.  Objection taken by the opposite parties, 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 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 them, to file this complaint. The submission of Counsel for the opposite parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

10.         It is not disputed that against the total sale consideration of the plot, in question, which was fixed at Rs.57,73,576.81ps., the complainants had paid  Rs.52,72,633.32ps.  by 07.06.2014, and thereafter, another amount of Rs.4 lacs was paid by them on 10.10.2016 totalling to Rs.56,72,633.32ps., towards price of the said plot. It is also evident from record that allotment letter was executed between the parties on 17.08.2012, and as per Clause 24 (a) thereof, the opposite parties, committed to complete development of the plot within 18 months with extended period of 6 months from the date of execution thereof i.e. on or before 16.08.2014. In the entire written statement, we did not find even a single reason, assigned by the opposite parties, as to why, possession of the plot in question, was not offered and delivered to the complainants, by the committed date. Admittedly, possession of the plot, in question, was offered, ultimately, on 11.08.2017, after obtaining partial completion certificate dated 28.04.2017 Annexure OP-11, which was taken over by the complainants, only during pendency of this complaint. At the time of arguments also, when specific questions were put to Counsel for the opposite parties, as to what was the reason, for such a huge delay in the mater, he was silent on this. Furthermore, it is not the case of the opposite parties that delay took place on account of any force majeure circumstances. Under these circumstances, it can safely be said that the opposite parties by receiving substantial amount of Rs.56,72,633.32ps., against total sale consideration of Rs.57,73,576.81ps. from the complainants and on the other hand, not offering and delivering possession of the plot, thereof to them, despite the fact that more than 3 ½ years had elapsed, indulged into unfair trade practice and was also deficient in providing service.
11.         At the time of arguments, Counsel for the opposite parties 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 parties 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 complainants. 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 parties that they encountered any force majeure circumstances, as a result whereof, they were entitled for extension of time for delivering possession of the plots to the allottees, including the complainants.

                At the time of arguments, it was also argued by Counsel for the opposite parties 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 similar 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 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 stands rejected.

                At the same time, it is also submitted that the opposite parties cannot evade their liability, merely by saying that since the words ‘best efforts’ etc. 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”.

 

12.          Another objection taken by the opposite parties 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.”

 

13.         The next question, that falls for consideration, is, as to whether, the complainants fall 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 their complaint, that the said plot was purchased by them for their residential purpose. On the other hand, nothing contrary to this, has been proved by the opposite parties, by placing on record, any document. Mere fact that the complainants are allegedly owning some other house also, address whereof has been mentioned in the headnote of this complaint, does not debar them to purchase a plot, in the project of the opposite parties or somewhere else. There is nothing, on the record, that the complainants are property dealers, and deal 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 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.  

14.         Now, we will deal with the objection, raised by the opposite parties, 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 parties, 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 parties stands rejected.

15.         The next question, that falls for consideration, is, as to whether, there was a continuing cause of action, in favour of the complainants or not.  It may be stated here that since it is an admitted case that offer of possession of the plot, in question, could not be made by the stipulated date and on the other hand, it was delivered only during pendency of this complaint i.e. only on 22.08.2018 (two weeks from the interim order dated 08.08.2018 passed by this Commission), as such,  there was a 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  Objection raised by the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
16.         Since it has been held above that the opposite parties were at fault, in not offering possession of the plot, in question, by the stipulated date, as such, now the question, which falls for consideration, is, as to what relief can be granted to the complainants. A similar question, came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016, wherein dealing with similar issue, it was observed as under:-

“What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Hon’ble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Hon’ble National Commission, on 06.05.2016, wherein, it was argued by the project proponent that at the maximum, as provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:-

“Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including  Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015.  Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.”

Not only this, in another case, titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)     xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.”

Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice.”

17.         Not only as above, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice.
18.         Furthermore, under similar circumstances, where there was delay of around three years in handing over possession of the unit, the National Commission in M/s. Apex Buildtech Ltd. Vs. Madhu Talreja, Revision Petition No. 739 of 2017, decided on 10 April 2017, upheld grant of interest @18% p.a. on the deposited amount, for the period of delay. Relevant part of the said order reads thus:-

“Learned counsel for the petitioner has contended that 18% interest awarded by the fora below is exorbitant.  We do not find any merit in this contention.  The petitioner is a builder who has utilized the money of gullible consumer on the false promise that he would deliver the possession within 3 years which he has not been able to fulfill even after 10 years of booking.  Therefore, the order of the Fora below grating 18% interest cannot be faulted.”

19.         Furthermore, under similar circumstances, where there was delay in handing over possession of the unit, the National Commission in M/s. Orchid Developers Pvt. Ltd. & Anr. Vs. Uttam Kumar Majumder, First Appeal No. 1028 Of 2018, decided on 11 Jul 2018, upheld grant of interest @18% p.a. on the deposited amount, for the period of delay and further dismissed the appeal of the builder by imposing fine of Rs.25,000/-.
20.         Furthermore, recently, the Hon’ble Supreme Court of India in DLF Homes Panchkula Pvt. Ltd. & anr.  Versus Himanshu Arora & anr., Civil  Appeal  No.  11097 of 2018   decided on 19.11.2018, has upheld that in the cases of delay in delivery of possession of the unit, the builder is liable to pay interest on the deposited amount, for the period of delay. As such, in the present case also, ends of justice will meet, it we grant interest on the deposited amount, for the complainants, for the period of delay in handing over respective plots.
21.         Since, keeping in view the law laid down by the Hon’ble Supreme Court and National Commission, it has already been held that the complainants are entitled to interest, on the amount deposited, for the period of delay in offering and delivering possession of the plot(s), as such, plea taken by the opposite parties to the effect that they are ready to pay penalty amount for the period of delay, in delivery of possession of the plot(s), in question, cannot be considered. If the opposite parties are allowed to invoke such Clause, that would amount to enriching them, at the cost of the complainants. The defence taken is accordingly rejected.
22.         The next question that falls for consideration, is, as to whether, the opposite parties were right in charging delayed payment interest from the complainants, especially when they themselves were at fault, in not developing the project in question, for a long time. It may be stated here that we have gone through the letter dated 06.12.2012 Annexure OP/8 and found that the complainants have clearly informed the opposite parties that the Bank concerned, refused to finance the plot, on account of the reasons that no work was being done at the project site; environment clearance was not obtained from the Competent Authority; and that there was first charge of SREAI on land of the project. However, it was found that the said letter was acknowledged by the opposite parties, by mentioning remarks thereon as “Matter of Interest to be settled in future”. Even otherwise, under above circumstances, if payments were stopped by the complainants, in our considered opinion, they were well within their right to do so, in view of principle of law laid down by the National Commission in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments can be stopped by the purchaser. As such, it is held that the opposite parties have no right to charge any interest from the complainants, in the face of their act and conduct, in not offering and delivering possession of the plot, in question, in the absence of any force majeure circumstances and on the other hand, have utilized the huge amount deposited with them, for their own purposes. In no way, the complainants can be termed as defaulters. Plea taken by the opposite parties, in this regard, stands rejected.  
23.         For the reasons recorded above, all the three complaints are partly accepted, with costs, in the following manner:-

In CC No.749 of 2017, the opposite parties, jointly and severally, are directed as under:-

1. To execute and get registered sale deed, in respect of the plot, in question, in favour of the complainants, within two months, from the date of receipt of a certified copy of this order, on payment of registration and stamp duty charges, by them to the Registering Authorities and any other amount legally due, if any. However, it is made clear that the opposite parties shall not charge any delayed payment interest from the complainants.
2. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainants, from 16.08.2014 (promised date) till 26.08.2017 (15 days from date of offer of possession i.e. 11.08.2017), within two months, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
3. To pay compensation, in the sum of Rs.1,00,000/- (as prayed), on account of mental agony, physical harassment, caused to the complainants, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
4. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.

In CC No.518 of 2017, the opposite party is directed as under:-

1. To execute and get registered sale deed, in respect of the plot, in question, possession of which had already been taken over on 13.08.2018, in favour of the complainants, within two months, from the date of receipt of a certified copy of this order, on payment of registration and stamp duty charges, by them to the Registering Authorities and any other amount legally due, if any.
2. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainant, from 19.06.2014 (committed date) till 08.10.2017 (15 days of offering possession vide letter dated 23.09.2017 Annexure OP-8), within two months, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
3. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment, caused to the complainant, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
4. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.
5. In this complaint, while taking over possession of the plot on 13.08.2018, the complainant has pointed out various short-comings at the site (already brought to the notice of the opposite parties on 21.05.2018), which have been brought to the notice of this Commission, by way of filing Miscellaneous Application bearing No.504 of 2018 on 12.09.2018. The opposite party is directed to provide water, electricity, sewerage treatment plan; gated security; street lights, before construction of house on the plot is started by the complainant, failing which, they shall further be liable to pay interest @9% p.a., on the deposited amount, from the date of filing this complaint, till realization i.e. till the aforementioned facilities are provided. As far as provision of Club house is concerned, the complainant can use the Club house already provided in the adjoining phase of the project, till the same is constructed in their area.

In CC No.517 of 2017, the opposite party is directed as under:-

1. To execute and get registered sale deed, in respect of the plot, in question, possession of which had already been taken over on 13.08.2018, in favour of the complainant, within two months, from the date of receipt of a certified copy of this order, on payment of registration and stamp duty charges, by him to the Registering Authorities and any other amount legally due, if any.
2. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainant, from 19.06.2014 (committed date) till 13.08.2018 (the date when actual physical possession of the plot no.936 was delivered), within two months, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
3. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment, caused to the complainant, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
4. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.
5. In this complaint also, while taking over possession of the plot, on 13.08.2018, the complainant has pointed out various short-comings at the site (already brought to the notice of the opposite parties on 21.05.2018), which have been brought to the notice of this Commission, by way of filing Miscellaneous Application bearing No.503 of 2018 on 12.09.2018. The opposite party is directed to provide water, electricity, sewerage treatment plan; gated security; street lights, before construction of house on the plot is started by the complainant, failing which, they shall further be liable to pay interest @9% p.a., on the deposited amount, from the date of filing this complaint, till realization i.e. till the aforementioned facilities are provided. As far as provision of Club house is concerned, the complainant can use the Club house already provided in the adjoining phase of the project, till the same is constructed in their area.

24.         Certified Copies of this order be sent to the parties, free of charge and also placed on record of the connected files.
25.         The files be consigned to Record Room, after completion.

Pronounced.

31.12.2018

 

Sd/-

 (JUSTICE JASBIR SINGH (RETD.)

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg.