Chandigarh

StateCommission

CC/787/2017

Smt. Sanjila Bansal - Complainant(s)

Versus

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

Savinder Singh Gill, Adv.

17 Oct 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	787 of 2017
Date of Institution	:	09.11.2017
Date of Decision	:	17.10.2018

Smt.Sanjila Bansal, W/o Dr.Yogender Bansal, R/o # 1154, Sector 24-B, Chandigarh.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Extension Developers Private Limited, SCO 143-144, Sector 8-C, Chandigarh, through its CEO-cum-Director, Sh.Kamal Kishore Gupta and Director Sh.Krishan Kumar Agarwal.
Kamal Kishore Gupta, CEO-cum-Director of M/s Omaxe Chandigarh Extension Developers Private Limited, R/o D-88, Gali no.10, Madhu Vihar, Delhi 110092.
Krishan Kumar Agarwal, Director of M/s Omaxe Chandigarh Extension Developers Private Limited, R/o 13B, Sector 8 Main Bazar, Mandi Adampur, Hisar 125052.

.... Opposite Parties

Argued by: Sh.Savinder Singh Gill, Advocate for the complainant.

Sh.Munish Gupta, Advocate for the opposite parties.

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

Complaint case No.	:	69 of 2018
Date of Institution	:	13.02.2018
Date of Decision	:	17.10.2018

Lakhbir Singh s/o Sukhdev Singh, resident of Village Dulchi Ke, District Ferozepur, Punjab.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Extension Developers Private Limited, having Registered Office 10 L.S.C., Kalkaji, New Delhi, through its Managing Director/Directors/Chief Executive Officer.

11nd Address:- M/s Omaxe Chandigarh Extension Developers Private Limited, SCO 143-144, Sector 8-C, Chandigarh, through its Managing Director/Directors/Chief Executive Officer.

IIIrd Address:- M/s Omaxe Chandigarh Extension, Site Address: In the revenue Estate of Villages Kansala, Parol, Kartarpur, Rani Majra Takipur Boothgarh, Dhode Majra Rasoolpurand Bhagat Majra in Mullanpur LPA (GMADA) District SAS Nagar (Mullanpur) Punjab, through its Managing Director/Directors/Chief Executive Officer.

Rohtash Goyal, Chief Managing Director M/s Omaxe Chandigarh Extension Developers Private Limited, having Registered Office 10 L.S.C., Kalkaji, New Delhi.

.... Opposite Parties

Argued by: Sh.Sandeep Bhardwaj, Advocate for the complainant.

Sh.Munish Gupta, Advocate for the opposite parties.

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

Complaint case No.	:	138 of 2018
Date of Institution	:	04.04.2018
Date of Decision	:	17.10.2018

Sunil Bali S/o Sh.Madan Lal Bali, R/o 2 Power Station, P.O. Khairi, Tehsil Dalhousie, Chamba, Himachal Pradesh 176325.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Extension Developers Private Limited, SCO 143-144, Sector 8-C, Chandigarh, through its CEO-cum-Director, Sh.Kamal Kishore Gupta and Director Sh.Krishan Kumar Agarwal.
Kamal Kishore Gupta, CEO-cum-Director of M/s Omaxe Chandigarh Extension Developers Private Limited, R/o D-88, Gali no.10, Madhu Vihar, Delhi 110092.
Krishan Kumar Agarwal, Director of M/s Omaxe Chandigarh Extension Developers Private Limited, R/o 13B, Sector 8 Main Bazar, Mandi Adampur, Hisar 125052.

.... Opposite Parties

Argued by: Sh.Savinder Singh Gill, Advocate for the complainant.

Sh.Munish Gupta, Advocate for the opposite parties.

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

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 05.10.2018. In all the complaints, referred to above, issues involved, except minor variations, here and there, of law and facts are the same. Consumer complaint bearing no.787 of 2017 has been filed by the complainant seeking directions to the opposite parties to deliver actual physical possession of the unit, in dispute; to pay compensation for the period of delay in delivering possession thereof, alongwith interest, compensation etc. Whereas, in consumer complaints bearing nos.69 of 2018 and 138 of 2018, the complainant(s) have sought directions to the opposite parties, to refund the entire amount paid by them, on account of delay in delivering possession of their respective units/plot(s) alongwith interest, compensation etc. 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.

To dictate order, facts are being taken from Consumer Complaint bearing No.787 of 2017 titled as Smt.Sanjila Bansal Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and Ors. The complainant has filed this complaint seeking possession of flat bearing no.AIFC/GF/466P, having built-up area of 1425 square feet, purchased by her, for total cost of Rs.41,13,400/- in a project namely “Ambrosia Independent Floor Chandigarh”, at Mullanpur, Punjab, floated by the opposite parties. It is her case that despite the fact that she had paid an amount of Rs.40,28,878/- against total sale consideration of Rs.41,13,400/- towards the said unit, yet, the opposite parties failed to deliver possession thereof, by 11.08.2016, i.e. within a period of 15 months, with extended period of 6 months as committed by them, vide Clause 7 (a) of the Allotment Letter/Agreement dated 12.11.2014. It was stated that deficiency in providing service and adoption of unfair trade practice is writ large on the part of the opposite parties, as they failed to comply with the provisions of Punjab Apartment and Property Regulations Act, 1995 (PAPRA), as they did not send agreement for signatures of the complainant within a reasonable period say two to three months, after receipt of amount equal to 25% of the sale consideration, whereas, the same was so done, after a gap of almost 3 years. This was done by the opposite parties, so that they are able to drag the date of possession, which was to be taken from the date of execution of the allotment letter/agreement and at the same time, they can utilize the amount paid by the complainant, without providing anything to her. The opposite parties started collecting money from the complainant from December 2011, whereas, construction work of the flats started only in October 2014, which fact is evident from letter dated 28.08.2017, Annexure C-5, issued by them only. Even necessary permissions/sanctions were not obtained by the opposite parties, before launching and selling the project, in question. It was pleaded that not only as above, just with a view to evade their liability, the opposite parties, without completing construction of the unit, in question and also without providing basic amenities at the project site, offered paper possession of the unit, in question, vide letter dated 09.03.2017, Annexure C-9. It was averred that completion certificate has not been obtained by the opposite parties, which is mandatory before delivering possession of the unit. Stating that since there was material violation of terms and conditions of the Allotment Letter/Agreement and also the PAPRA, it was not incumbent upon the complainant to accept possession at that stage. Furthermore, the complainant purchased the unit on ground floor, whereas, she was offered possession of a unit, on first floor i.e. in a building raised on stilts. It was stated that flats on the first and second floors were cheaper than the flats on ground floor. By writing emails, the complainant brought the above said facts to the notice of the opposite parties, however, to the contrary, vide letter dated 02.11.2017, Annexure C-12, a threat of cancellation of the unit was given by the opposite parties. Hence this complaint has been filed seeking possession of the unit, in question, complete in all respects; payment of interest on the deposited amount for the period of delay; compensation for mental agony etc. Whereas, in remaining two consumer complaints bearing nos.69 of 2018 and 138 of 2018, the complainant(s) have sought directions to the opposite parties, to refund the amount paid, alongwith interest, on account of delay in delivering possession of their respective units alongwith interest, compensation etc.
Upon notice, joint written reply was filed by the opposite parties, wherein, it was pleaded that as per Clause 62 of the Allotment Letter/Agreement, this Commission has no jurisdiction, to entertain and decide dispute between the parties, because as per above said provision, for settlement of dispute, the matter needs to be referred to an arbitrator for adjudication. Territorial and pecuniary jurisdiction of this Commission was also challenged. It was pleaded that the complainant being investor, would not fall within definition of consumer, as defined under Section 2 (1) (d) of Act. It was averred that the complainant has concealed material facts, as such, is not entitled to get any relief.
On merits, purchase of the unit, in question, was admitted. Payments made were also admitted. It was stated that on completion of construction work occupation certificate had been obtained by the opposite parties, from the Competent Authorities, on 13.02.2017 and thereafter, possession of the unit was offered to the complainant, vide letter dated 09.03.2017, in time. However, despite sending reminder, vide letter dated 02.11.2017, the complainant failed to come forward to take possession, on making payment of the amount due, as reflected in the said letter and on the other hand, has filed this complaint. There was no delay in the matter. Construction of the units was started in the year 2014, on execution of allotment letter/agreement between the parties. The complainant was informed about tentative increase in area of the unit, in question. It was averred that the complainant was defaulter in making payment towards price of the said unit, yet, the opposite parties offered possession thereof, to her. It was pleaded that as per Rules of the Government, in such like projects, construction of flats is allowed on stilts and the ground floor area is to be kept for parking of the cars. The complainant was offered possession of a unit, which is located on first floor, in the building on stilts. Even one free car parking is provided to the complainant. It was further pleaded that opposite parties no.2 and 3 i.e. Directors of the Company, have been wrongly impleaded as parties to the complaint, in their personal capacity. Prayer was made to dismiss the complaint.
The parties led evidence in support of their cases.
During pendency of this complaint, in terms of order dated 11.05.2018, passed by this Commission, possession of the unit was taken over by the complainant, on 31.05.2018, on making part payment of Rs.5 lacs, to the opposite parties. However, on 25.06.2018, it was stated by Counsel for the complainant that the unit, in question, was not ready and there were number of snags. The said grievance raised was not objected/disputed by the opposite parties. As such, the opposite parties were directed to rectify the defects, within a period of two weeks, after receiving list of snags from the complainant. Thereafter, during pendency of the complaint, the complainant did not raise any grouse to the effect that the said snags were not removed by the opposite parties, meaning thereby the same were removed being minor ones.
We have heard the contesting parties and have gone through the evidence and record of the cases, very carefully.
First, 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.

It may be stated here that, such an issue, as to whether, 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 jurisdiction to entertain the consumer complaint or not, 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 complainant 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, in this regard, stands rejected.

Now we will like to decide an objection raised by the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. 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, 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, total value of the unit, in question; plus compensation claimed by way of interest @18% p.a. on the deposited amount of Rs.40,28,878/- for the period of delay; interest on Rs.8,29,000/- from the respective dates of deposits till 12.11.2014 and also Rs.7 lacs, claimed as compensation for mental agony; physical harassment etc., if taken into consideration, it exceeds Rs.20 lacs and fell below 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.

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 provisional allotment letter dated 23.11.2012 Annexure C-1 in respect of the unit, in question, was issued by Chandigarh Office of the opposite parties i.e. SCO No.139-140, Sector 8-C, Chandigarh. Not only as above, even the Allotment Letter/Agreement dated 12.11.2014 Annexure C-2 was executed between the parties at Chandigarh, as the same bores round stamp of the Chandigarh office of the opposite parties, on each and every page. The said address of Chandigarh Office of the opposite parties, is found mentioned on almost all the letters/documents, placed on record by the complainant. 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 this complaint. Objection taken by the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined by Section 2 (1) (d) of the Act, or not. It may be stated here that the mere bald objection of the opposite parties that the complainant had purchased the unit, in question, 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, which is supported by her affidavit that the said unit was purchased by her, for her residential purpose. On the other hand, nothing contrary to this, has been proved by the opposite parties, by placing on record, any cogent evidence. Also, 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.”

The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, therefore, being devoid of merit, is rejected.

It is not in dispute that the complainant had purchased the unit, in question, for total cost of Rs.41,13,400/- in the said project of the opposite parties. It is also not in dispute that despite the fact that she had paid an amount of Rs.40,28,878/- against total sale consideration of Rs.41,13,400/- towards the said unit, yet, the opposite parties failed to deliver possession thereof by 11.08.2016, i.e. within a period of 15 months, with extended period of 6 months as committed by them, vide Clause 7 (a) of the Allotment Letter/Agreement. It is also on record that despite the fact that substantial amount of Rs.12,82,820/- had been received by the opposite parties by 11.11.2014, yet, Allotment Letter/Agreement was not sent to the complainant for her signatures. It was delayed by about three years. By doing so, the opposite parties have indulged into unfair trade practice. After acceptance of booking amount, it was required of the opposite parties to issue allotment letter/agreement, within a reasonable time, say two or three months, but they failed to do so and on the other hand, kept on utilizing the amount of Rs.12,82,820/- for about three years, without providing anything to the complainant. This Commission in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016 held that such an act of the opposite parties, amounted to unfair trade practice. Relevant portion of the said case, reads thus:-

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

As such, by not offering Allotment Letter/Agreement, for signing in a reasonable time, but after a delay of about three years of accepting amount of Rs.12,82,820/-, the opposite parties committed unfair trade practice and are also deficient in providing service. In view of above default committed, we are of the considered opinion that compensation to the extent of Rs.1,00,000/-, if granted to the complainant, in this complaint, shall meet the ends of justice.

Now coming to the question, as to whether, there is any delay, on the part of the opposite parties, in offering possession of the unit, in question, and if yes, then to what extent, the complainant is entitled to compensation for such delay. It is not in dispute that the opposite parties started collecting money from the complainant from December 2011, whereas, construction took place only in October 2014, which fact is evident from letter dated 28.08.2017, Annexure C-5, issued by them only. Be that as it may, as per Clause 7 (a) of the said Allotment Letter/Agreement, the opposite parties were liable to complete the construction work within 21 months (15 months (+) 06 months extended period) from the date of signing thereof i.e. latest by 11.08.2016. Possession of the unit was offered only on 09.03.2017, which was not taken over by the complainant, on the ground that the flat was not complete, at that time. Possession was ultimately taken over, during pendency of this complaint, on orders of this Commission. To prove that the unit, in question, was complete, when possession was offered to the complainant, the opposite parties, have placed reliance on occupation certificate dated 13.02.2017, issued by the Competent Authorities, in respect of the same (unit). As such, to challenge the said certificate, the complainant was required to place on record any letter/document having been sent to the opposite parties saying that the possession so offered is a paper one because construction was not complete at the relevant time and that the said occupation certificate has been obtained in connivance with the Authorities concerned, just with a view to defeat her claim. She could have placed on record photographs of the incomplete unit (if the flat was not ready by that time) having been clicked alongwith date(s), to prove that construction was not complete but paper possession has been offered by the opposite parties. However, she failed to do so. As such, in the absence of any evidence having been produced by the complainant that the possession so offered was a paper one, this Commission is of the view that it was a genuine offer and if there were some minor defects, the same could have been removed, after taking the possession under protest. Furthermore, it is not the case of the complainant that the defects were major one and also the flat was not habitable as its construction was not complete or that the basic needs therein such as washrooms, kitchen, electricity, water etc. which is required for smooth habitable life, were not provided, when possession was offered by the opposite parties. Be that as it may, there is a delay in handing over possession of the unit, in question, to the complainant. Facing with the situation, at the time of arguments, Counsel for the opposite parties contended that as per Clause 7 (a) of the Agreement, beyond the period of 21 months, the opposite parties can get further six months to deliver possession of the unit and while computing the above said period, Sundays, Saturdays, Bank Holidays, etc. are to be ignored, and that the complainant, at the most, is entitled to compensation @Rs.10/- per square feet of super area of the unit.

First coming to the question, as to whether, while computing the above said period of delay in handing over possession of the unit, Sundays, Saturdays, Bank Holidays, etc. are to be taken into account or not, it may be stated here that 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, and when dealing this issue, it was observed by this Commission, as under:-

“We feel that the contention raised is liable to be rejected. In Clause 23(b) of the Agreement, it is stated that possession will be delivered within 24 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 has also been reiterated by this Commission, in number of cases, thereafter, in respect of the same project. 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. Out of the two benefits, only one can be made available to the opposite parties. In this view of the matter, contention raised by Counsel for the opposite parties, being devoid of merit, must fail and the same stands rejected.

In the present case, it has been noticed by this Commission that after receiving booking amount against the agreed consideration as far as back in the year 2011, the opposite parties deliberately failed to take any steps for starting the construction of the units till 2014. They kept on receiving amount from the complainant and, as stated above, allotment letter/agreement was sent for signatures of the complainant after about three years, just with a view to buy time for possession and for this act, they have been penalized, in the manner, referred to above. The opposite parties have not shown any cogent reason, which prevented them to complete construction of the unit and deliver possession thereof within the stipulated period.

What relief can be granted to a consumer, in case of delay, in offering possession of a residential unit purchased, in the absence of any force majeure circumstances having been faced by the builder, also came up for consideration before this Commission in Ankur Gupta`s case (supra), 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.”

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. Taking note of above said proposition of law, in the present case also, ends of justice would meet, if interest is granted for delayed period, to the complainant whereof 11.08.2016 till 08.04.2017 (one month after the date of offer of possession i.e. 09.03.2017).

Besides as above, the opposite parties are also liable to pay compensation to the complainant, for providing her deficient service; guilty of adoption of unfair trade practice and causing her mental agony & physical harassment.

An objection was also taken by the opposite parties, that opposite parties no. 2 and 3, have been wrongly impleaded as necessary party to this complaint. It may be stated here that the complainant by way of placing document Annexure C-13 has proved that opposite parties no.2 and 3 are the active Directors of the Company. As such, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the Company. A similar controversy arose for determination before the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017, wherein, it was held as under:-

“From the material on record, it is evident that the OP-2 is the Chairman of the Company whereas the OP-3 is the Chief Executive Officer-cum-M.D. of the said company. Evidently, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the company. By virtue of their office, they can directly influence any decision regarding relief to be granted to the complainant, as asked for in the consumer complaint. It is held, therefore, that the State Commission has rightly dismissed the interim application, rejecting the plea of the appellants to delete the name of OP-2 & OP-3 from the array of parties. The impugned order passed by the State Commission is, therefore, upheld and the appeal is ordered to be dismissed with no order as to costs.”

In view of above, objection raised by Counsel for the opposite parties stands rejected.

In connected consumer complaint bearing no.69 of 2018, the complainant has sought refund of the entire amount paid, as possession of the plot booked by him, in the project of the opposite parties named Omaxe Chandigarh Extension, Mullanpur, Punjab, as far as back in 2012, was not offered till the date of filing of this compliant. Similarly, in connected consumer complaint bearing no.138 of 2018, the complainant has sought refund of the entire amount paid, as possession of the flat booked by him, in the project of the opposite parties named Omaxe Ambrosia, New Chandigarh, Mullanpur, Punjab, as far as back in 2012, was not offered by the stipulated date i.e. 21.05.2016, which fact is not seriously disputed by them (opposite parties). No cogent and convincing evidence has been placed on record, by the opposite parties, in these complaints, as to what stopped them, from completing the development and construction at the project site and offer possession by the committed date.

In connected consumer complaint bearing no.138 of 2018, possession of the flat therein was offered belatedly, which is a material violation on the part of the opposite parties, as such, in our considered opinion, the complainant therein is not obliged to take the same. Our view is supported by the law laid down by the National Commission, in the 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 above view taken by the National Commission, has been reiterated by it, recently in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No. 1814 of 2017 decided on 05.07.2018. Relevant part of the said order reads thus: -

“This Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment”.

In view of above, the complainants in connected consumer complaints, referred to above, are held entitled to refund of their amount deposited, alongwith interest, compensation and litigation expenses.

In connected consumer complaint bearing no.138 of 2018, objection was raised by the opposite parties to the effect that time was not to be considered as essence of the contract. No definite period was given to hand over possession of the flat but the period mentioned in the Agreement was tentative, as it was stated that the Company shall try to complete construction/development of the project within 15 months with extended period of six months, from the date of execution thereof, (agreement). However, in the same breath, a plea has also been taken by the opposite parties that the complaint filed is beyond limitation. Further objections were taken in this case that forfeiture clause will be applicable, in case, refund is ordered; and that at the time of purchasing the unit, in resale, affidavit was sworn by the complainant that he will not claim any compensation, for the period of delay, in handing over possession thereof. It was stated that the opposite parties are ready to pay delayed compensation, for the period of delay, in offering possession of the unit, to the complainant.

First coming to the objection taken by the opposite parties in consumer complaint bearing no.138 of 2018 that time is not be considered as essence of the contract, it may be stated here that, once a plea has been taken by the opposite parties that the complaint filed is beyond limitation, as such, in the same breath, taking another plea to say that time is not to be considered as essence of the contract, has no legs to stand and, is accordingly rejected. The plea raised to this effect also needs rejection in view of principle of law laid down by the National Commission in Consumer Complaint No. 315 of 2015 Pradeep Narula Vs. M/s. Granite Gate Properties Pvt. Ltd. & Anr. decided on 23.8.2016, wherein, it was held as under:

“10…….………Moreover, the decision in Chand Rani (supra) was rendered in the context of a suit for specific performance of an agreement to sell the first floor of an existing house, whereas the decision in the Hind Construction (supra) was rendered in the context of a Government contract. In neither of these cases, the Hon’ble Supreme Court was called upon to decide as to whether an unjustified and explained delay on the part of the builder/service provider in construction of a residential flat booked by a person seeking to have a shelter over his head amount to a deficiency in the service rendered by him to the consumer, or not. The primary purpose of a consumer in booking a residential flat which the builder is to construct for him, is to start living in that house on or about the date committed to him by the builder for delivering possession of the flat booked by him. If the builder does not deliver upon his contractual obligation and at the same time, is unable to show that the delay in completion of the flat and offering its possession to the consumer was on account on circumstances beyond his control, this would constitute deficiency on the part of the builder/service provider in rendering services to the consumer. If I accept the contention that the builder can indefinitely postpone and delay the construction of the flat and the flat buyer has no option but to wait till the builder decides to complete the construction and offer possession to the buyer, that would be nothing but a travesty of justice and result in a situation where the flat buyer is left at the mercy of the builder, without recourse to an appropriate legal remedy. Such an interpretation, if taken, is bound to defeat the very objective behind the enactment of the Consumer Protection Act, as far as housing construction is concerned. Therefore, I am unable to accept the contention advanced by the learned counsel for the opposite party. In my view, wherever the builder commits a particular date or time frame for completion of the construction and offering possession to the buyer, he must necessarily honour the commitment made by him, though a minor delay may not constitute deficiency in the service rendered by him to the buyer. Of course, if the builder is able to how that the delay in completion of the construction and offering possession to the buyer is attributable wholly to the circumstances beyond his control, that may not be a case of deficiency in the services rendered to the consumer”.

Now coming to another objection raised by the opposite parties that since it was mentioned in the Agreement that the Company shall only try to complete construction of the unit and development of the project within maximum period of 21 months, from the date of signing of the agreement, as such, no definite assurance was given, therefore, time was not to be considered as the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 7 (a) of the Agreement that the Company shall complete development of the project and construction of the unit, within a maximum period of 21 months, from the date of execution of the agreement, subject to force majeure circumstances or reasons beyond the control of the opposite parties. In the instant case, the opposite parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the opposite parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 7 (a) of the Agreement, the opposite parties were bound to deliver possession of the unit, within a maximum period of 21 months, from the date of signing of the agreement, as such, time was, unequivocally made the essence of contract.

At the same time, the opposite parties, also cannot evade their liability, merely by saying that since the word(s) “shall endeavor/try/propose etc.” was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the 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 unit 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. Vs. 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”.

In view of above, plea of the opposite parties in this regard also stands rejected.

Since, it has been held above that there was delay on the part of the opposite parties, in offering possession of the unit, in question, as such, the plea taken by them that forfeiture clause will be applicable being devoid of merit stands rejected. Had possession of the unit, in question, been offered/delivered by the stipulated date and had the complainant refused to take the same, on account of some personal reasons, only in those circumstances, order with regard to forfeiture of amount out of the deposited amount, would have been passed, as per prevailing law.

As far as objection taken to the effect that the complainant has submitted affidavit Annexure OP-2 to the effect that he shall not claim any compensation for the period of delay in offer of possession, it may be stated here that in this case, the complainant is seeking refund of the amount paid and not possession of the unit, on account of delay in offering possession of the unit. As such, contents of the affidavit, is of no help to the opposite parties, as far as the case of the complainant, seeking refund of amount paid, on account of delay in the matter, is concerned. Objection taken in this regard, stands rejected.