Chandigarh

StateCommission

CC/340/2018

Rahul Shahi - Complainant(s)

Versus

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

Parveen Gupta, Adv.

10 Jun 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	340 of 2018
Date of Institution	:	31.08.2018
Date of Decision	:	10.06.2019

 

1. Rahul Shahi S/o Sh.Bahadur Chand Shahi, HN-280, Ward no.4, NAI Khanna (Punjab)-141401.
2. Mrs.Anjali Shahi W/o Sh.Rahul Sahi, HN-280, Ward no.4, NAI Khanna (Punjab)-141401.

……Complainants

V e r s u s

1. M/s Omaxe Chandigarh Extension Developers Private Limited, (Through the Officer Incharge/Authorized Representative). Zonal Office: Indian Trade Tower, 1^st Floor, Madhya Marg Extn. Road, New Chandigarh (Near Mullanpur), Distt. SAS Nagar (Mohali)-140901.
2. M/s Omaxe Chandigarh Extension Developers Private Limited, (Through its Managing Director), Corporate Off: 10, Local Shopping Complex, Kalkaji, New Delhi-110019.

….Opposite parties

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

 

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

                   MRS. PADMA PANDEY, MEMBER.

                   MR. RAJESH K. ARYA, MEMBER.

 

Argued by:Sh.Parveen Gupta, Advocate for the complainants.

Sh.Munish Gupta, Advocate for the opposite parties.

 

JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainants have filed this complaint, seeking refund of amount of Rs.9,82,617/- paid by them, to the opposite parties (which fact is not disputed), towards purchase of plot bearing No.OCEP/P/139, measuring 115 square yards, in the project named ‘Omaxe New Chandigarh’, New Chandigarh, District SAS Nagar, Punjab. Total price of the said plot was fixed at Rs.36,35,470/-. It is specific case of the complainants that despite making payment of Rs.9,82,617/-, against total sale consideration of Rs.36,35,470/-, the opposite parties failed to allot plot no.; issue allotment letter/buyer’s agreement; and offer and deliver possession of the plot. Whereas, on the other hand, at the time of booking of the plot, on 16.01.2015, it was promised by the opposite parties that possession thereof will be handed over within a period of 24 months from the date of booking. Visits to the project site revealed that the opposite parties will not be able to deliver possession of the plot, even in the next two to three years, for want of development. Number of requests were made to the opposite parties, in the matter, but except bald assurances no positive steps have been taken.

                By stating that the aforesaid act of the opposite parties amounted to deficiency in providing service; adoption of unfair trade practice; and also, violation of provisions of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA) the present complaint has been filed by the complainants, seeking refund of amount paid alongwith interest, compensation etc.

2.         In the reply filed by the opposite parties, many preliminary objections were raised. It was averred that the complainants did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, as such, they being investors had purchased the plot, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. Territorial and pecuniary jurisdiction of this Commission was challenged. It was pleaded that as per terms and conditions contained in the application form of booking the plot, this Commission has no jurisdiction, to entertain and decide the present case and the matter needs to be referred to an arbitrator for adjudication. It was averred that the complainants have concealed material facts, as such, they are not entitled to get any relief. It was further pleaded that since the complainants have not filed application, seeking request to file a joint complaint, as such, it is liable to be dismissed on this ground alone.
3.         On merits, purchase of plot in question and payments made by the complainants, as mentioned in the complaint, are not disputed. It was averred that since the complainants failed to make remaining payment, as demanded from them, by way of sending letter followed by reminders, as such, development of the project got delayed. It was pleaded that the complainants are at liberty to come forward to make remaining payment towards price of the said plot. Remaining averments were denied being wrong. Prayer was made to dismiss the complaint.
4.         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.
5.         The parties led evidence in support of their case.
6.         The contesting parties raised arguments, in tune of the facts narrated above.
7.         We have heard the contesting parties and have gone through the evidence and record of the case, very carefully.
8.         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 the application form of booking the plot, this Commission has no jurisdiction to entertain the consumer complaint.

                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/application form, 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. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018.

                In this view of the matter, objection raised by the opposite parties, in this regard, stands rejected.

9.         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, 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. As such, in the present case, if total value of the plot, in question, i.e. Rs.36,35,470/-, plus compensation claimed by way of interest @12% p.a. on the deposited amount of Rs.9,82,617/- and also Rs.1 lac, claimed as compensation, is 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. Objection taken by the opposite parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
10.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide this complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record that almost all the documents have been issued by Regional Office of the opposite parties at Chandigarh i.e. SCO 139-140, Sector 8-C, Madhya Marg, Chandigarh-160008. Furthermore, letter dated 20.07.2018 Annexure C-5, whereby the complainants had sought refund of the amount paid alongwith interest etc. was also received by Chandigarh Office of the opposite parties, as the said letter bears round stamp of the said Office. Not only as above, even the letter dated 20.07.2018 Annexure C-6 was issued by Chandigarh Office of the opposite parties in favour of the complainants, whereby it was informed that allotment of plot will be made in August 2018. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

11.         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) of the Act, or not. It may be stated here that 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. 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 the absence of any evidence against the complainants, mere bald assertion in this regard, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, 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. Similar view was reiterated by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016.

                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.  

12.         It is not in dispute that the complainants had purchased the plot in question, in the said project, for total sale consideration of Rs.36,35,470/-, inclusive of all charges, against which, they had already paid an amount of Rs.9,82,617/-.  It is also not disputed that even by the date of filing this complaint, neither allotment of plot, in question was made in favour of the complainants; nor buyer’s agreement was sent for their signatures. In the written reply, nothing has been mentioned, as to why allotment of plot was not made and also agreement was not got signed from the complainants, despite the fact that more than 25% of the sale consideration had been received by the opposite parties, by 27.05.2015. It is very significant to add here that as per as the provisions of Section 6 of the PAPRA, the project proponent is duty bound to get the buyer’s agreement signed from the allottee, before it accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price. Relevant Clause of the PAPRA reads thus:-

“6.(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908) ;”

 

The opposite parties were required to execute Buyer’s Agreement on accepting application for purchase of plot, within a reasonable time say about two to three months and that too after receiving 25% of the total sale consideration. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-

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

 

As such, by not offering Buyer’s Agreement, for signing, within a reasonable time aforesaid and even till date, despite receiving huge amount equal to more than 25% of the total sale consideration, the opposite parties indulged into unfair trade practice and are also deficient in providing service.

13.         At the same time, not even a single document has been produced on record, to prove as to at what stage, development at the project site has reached, which has been carried out, by spending the amount received from the complainants and other similar located allottees. It is settled law that onus to prove the stage and status of development at the project, is on the builder/developer. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that in the present case, not even an iota of evidence has been placed on record, by the opposite parties, to prove that as to at what stage, development work has reached, in respect of the project, wherein, the plot, in question, is located. In case, the development/construction activities, are being undertaken and in progress, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, had been undertaken and completed at the site or not, but they failed to do so. By 20.07.2018, despite the fact that substantial amount, referred to above, had been received from the complainants, vide letter of the even date (20.07.2018 Annexure C-6), the opposite parties informed them that allotment of plot will be done in next month i.e. August 2018. However, there is nothing on record, as to whether any further steps were taken in the matter or not. At the time of arguments, when a specific question was put to Counsel for the opposite parties, as to by which date, development will be completed at the project site and possession could be offered to the complainants, he failed to give any answer. Under these circumstances, material violation of commitment made by the opposite parties, cannot be ignored. It is well settled law that non-delivery of possession of plot(s)/unit(s) in a developed project, by the stipulated date or say within a reasonable period of two to three years where no agreement has been executed between the parties, is a material violation on the part of a builder. It was so said by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, 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, 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”.

                As such, under above circumstances, the complainants cannot be made to wait for an indefinite period, at the whims and fancies of the opposite parties. Since there was a material violation on the part of the opposite parties, as explained above, the complainants are at liberty to seek refund of the amount deposited, alongwith interest.

14.         As far as objection taken by the opposite parties to the effect that there is no joint application for filing a single complaint, it may be stated here that the complainants are husband and wife respectively. From the perusal of complaint, we find that the same has been signed by both the complainants. Even affidavits in support of the contents contained in the complaint, have also been filed by the complainants. After hearing Counsel for the complainants, at the preliminary stage, when notice was issued to the opposite parties, permission deemed to have granted to the complainants, to pursue this complaint jointly. The Consumer Protection Act, 1986, is a beneficial legislation, to provide speedy, inexpensive and hassle-free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. Unnecessary technicalities deter an individual consumer from approaching the consumer fora, thereby frustrating the objective of the Act. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. It was also so said by the Hon’ble Supreme Court of India, in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital and another, Civil Appeal No.2641 of 2010, (Arising out of SLP(C) No.15084/2009), decided on  March 8, 2010. Relevant contents of the said order read thus:-

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

As such, objection taken by the opposite parties, in this regard, therefore being devoid of merit stands rejected.

15.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.9,82,617/- was paid by the complainants towards price of the said plot. The said amount has been used by the opposite parties, for their own benefit. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335. In view of above, the complainants are entitled to get refund of the amount deposited by them, alongwith interest, from the actual dates of deposits till realization
16.         At the same time, it is also held that since the opposite parties themselves were deficient in providing service and negligent, in not developing the project; allotting the plot; getting the buyer’s agreement signed from the complainants; the complainants were right in not making further payment demanded by them (opposite parties), in view of principle of law laid down by the Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the unit by the stipulated date, it cannot expect the allottee(s) to go on paying instalments to it. Similar view was also taken 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 was rightly stopped by the purchaser. Under these circumstances, in no way, the complainants can be termed as defaulters. Objection taken in this regard, stands rejected.  
17.         No other point, was urged, by the contesting parties.
18.         For the reasons recorded above, this complaint is partly accepted with costs and the opposite parties, jointly and severally, are directed as under:-

1. To refund the amount Rs.9,82,617/- to the complainants, alongwith interest @12% p.a., from the respective dates of deposit onwards.
2. To pay compensation, in the sum of Rs.50,000/-, for causing mental agony and physical harassment, to the complainants, and also deficiency in providing service and adoption of unfair trade practice.
3. To pay cost of litigation, to the tune of Rs.22,000/- to the complainants.

19.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @15% p.a., from the date of default, and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing this complaint, till realization.
20.         However, it is made clear that if the complainants have availed loan facility from any banking/financial institution, for making payment towards the said plot, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
21.         Certified Copies of this order be sent to the parties, free of charge.
22.         The file be consigned to Record Room, after completion.

Pronounced.

10.06.2019

Sd/-

 

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

 

Sd/-

 

(RAJESH K. ARYA)

MEMBER

 Rg