Chandigarh

StateCommission

CC/314/2018

Gauri - Complainant(s)

Versus

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

Narender Yadav, Vineet Yadav, Adv.

20 Sep 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	314 of 2018
Date of Institution	:	10.08.2018
Date of Decision	:	20.09.2019

 

Gauri w/o Sh.Vikas Ahuja, R/o H.No.517, Blenheim Centre Hounslow, London TW31ND through her Special Power of Attorney Sneh Prabha Sood W/o Sh.Rajinder Kumar Sood, R/o H.No.341, Sector 11, Panchkula.

…..Complainant

V e r s u s

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Regional Office at S.C.O. 139-140, Sector 8-C, Chandigarh, through its Managing Director/Authorized Signatory.
2. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Registered Office at 10 LSC, Kalkaji, New Delhi-110019, through its Managing Director/Authorized Signatory.
3. Krishan Kumar Aggarwal, Director, R/o 13B, Sector 8, Main Bazar, Mandi Adampur, Hisar 125052.
4. Kamal Kishore Gupta, Director, R/o D-88, Gali No.10, Madhu Vihar, Delhi-110092

…..Opposite Parties

 

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

 

BEFORE:         JUSTICE  RAJ SHEKHAR ATTRI, PRESIDENT

                        MRS.PADMA PANDEY, MEMBER

 

Argued by:       Sh.Narinder Yadav, Advocate for the         complainant.

      Sh.Sanjeev Sharma, Advocate for the opposite parties.

 

PER PADMA PANDEY, MEMBER

 

                The complainant has filed this complaint seeking directions to the  opposite parties  to deliver possession of plot bearing no.OCE/II/44, measuring 301.38 square yards, purchased by her, in their project named ‘Omaxe Chandigarh Extension”, Mullanpur, SAS Nagar, Punjab, total price whereof was fixed at Rs.70,58,967.30ps. plus other miscellaneous charges like service tax, stamp duty and registration charges etc. It is definite case of the complainant that despite the fact that as per demands raised by the  opposite parties, from time to time, she has paid substantial amount of Rs.66,69,972/- towards price of the said plot, yet, they failed to deliver possession thereof by 19.07.2014 i.e. within a period of 18 months plus 6 months totaling 24 months, as committed vide Clause 24 (a) of the Agreement dated 20.07.2012. However, possession of the plot was not offered to the complainant, by the stipulated date, for want of development work and basic amenities at the project site. Number of times, the complainant raised  her grievance with the opposite parties, orally as well as in writing, but to no avail. On the other hand, the opposite parties were interested in raising demands, towards remaining price of the said plot, to which the complainant objected. She requested the opposite parties to offer and deliver possession of the plot, in question, and also to compensate her, by way of making payment of interest, on the deposited amount for the period of delay, but to no avail. Ultimately, legal notice dated 14.02.2018 followed by reminder dated 26.03.2018 were served upon the opposite parties, in the matter, but the same were not even replied to, by them. Even letter dated 12.04.2018 sent by the complainant, for amicable settlement in the matter, did not yield any result. Hence this complaint.  

2.         In the written reply filed by the opposite parties, it was stated that since the complainant is an NRI, as such, the present plot has been purchased by her, for commercial purpose and not for her residential purposes. She being an investor, did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act. Pecuniary and territorial jurisdiction of this Commission was challenged. As per Clause 44 (c) of the allotment letter/agreement, this Commission has no jurisdiction, to entertain and decide dispute between the parties, and the matter needs to be referred to an arbitrator for adjudication.
3.         It was pleaded that since period to offer possession of the plot was to be computed excluding Saturdays, Sundays and Bank Holidays; no definite period was committed to hand over possession of the plot; and also the plot, in question, falls under the category of immovable property, as such, time was not to be considered as essence of the contract. However, in the same breath, it was pleaded that the complaint filed is time barred. It was stated that possession of the plot, in question, was offered to the complainant, vide letter dated 16.03.2016, Annexure OP/7, but she failed to take over the same, as a result whereof, numerous reminders were sent to her, in the matter. Completion certificate Annexure OP-9, in respect of the project, in question, was received by the opposite parties, on 12.04.2018 (infact 28.04.2017). It was pleaded that the complainant was defaulter in making payment towards price of the said plot, as a result whereof, she was asked to pay Rs.4,41,357/- towards interest, on delayed payments. It was further pleaded that opposite parties no.3 and 4 have been wrongly impleaded as necessary parties to this complaint. It was stated that since the allegations of cheating and fraud have been levelled by the complainant, as such, she is liable to be relegated to the civil court for proper adjudication of the matter, as the same cannot be entertained by this Commission, under summary proceedings. Remaining averments were denied being wrong. Prayer was made to dismiss the complaint with cost.
4.         The parties led evidence in support of their case.
5.         We have heard the contesting parties and have gone through the evidence and record of the case, very carefully.
6.         First, we will like to deal with an objection raised by the  opposite parties with regard to pecuniary jurisdiction. It may be stated here that in the present case, total value of the plot, in question i.e. Rs.70,58,967.30ps.; plus compensation claimed by way of interest @10% p.a. for the period of delay, on the deposited amount of Rs.66,69,972/-; and also Rs.2 lacs, claimed as compensation for mental 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. Objection taken, thus, stands rejected.
7.         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  letter dated 03.11.2016 alongwith statement of account of the even date (at pages 55 and 56 of the file) were sent to the complainant, by Regional Office of the opposite parties at SCO 139-140, Sector 8-C, Madhya Marg, Chandigarh-160008. Not only as above, even the letters which have been placed on record by the opposite parties, themselves, alongwith the written reply filed, reveal that the same were issued in favour of the complainant, from their Regional Office, referred to above. Number of letters, referred to above, also bear round stamp of Chandigarh Regional Office of the Company. Furthermore, it is significant to mention here that this Commission has decided number of cases, wherein, it has been proved that the opposite parties were having their Office at Chandigarh, wherefrom, the project in Mullanpur, Punjab, was marketed and sold. As such, this Commission has got territorial Jurisdiction to entertain and decide this complaint.  Objection taken in this regard, therefore stands rejected. 

                The opposite parties also took an objection 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, shall have Jurisdiction, to entertain and adjudicate the dispute(s) in respect of the plot, in question, 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 complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case. In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to her, to file the complaint. In view of above, objection taken by the opposite parties, in this regard, also stands rejected. 

8.         As far as objection raised by the  opposite parties, that in the face of existence of provision to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain the consumer complaint, is concerned, 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 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.         The next question, that falls for consideration, is, as to whether, the complainant is a speculator, therefore, she would not fall within the definition of consumer, as defined by Section 2 (1) (d) of the Act, as alleged by the opposite parties. It may be stated here that there is nothing, on record to show that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. 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. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case.

                At the time of arguments, it was vehemently argued by Counsel for opposite parties that since the complainant is residing abroad and has no intention to shift to India, therefore, the plot, in question, was purchased for future gains, as such, she would not fall within the definition of consumer. It may be stated here that, no law debars NRIs and any other person sitting abroad, with roots in India, to purchase a residential property in India, for his/her personal use. Under similar circumstances, the Hon`ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

 

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.  

10.         It is not in dispute that the complainant purchased the plot, in question,  in the manner, referred to above, in the project of the opposite parties. It is also not in dispute that despite the fact that as per demands raised by the  opposite parties, from time to time, the complainant paid substantial amount of Rs.66,69,972/- towards price of the said plot, yet, the opposite parties failed to deliver possession thereof by 19.07.2014 i.e. within a period of 18 months plus 6 months totaling 24 months, as committed vide Clause 24 (a) of the Agreement dated 20.07.2012. 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 complainant, by the committed date.

                Now the question, which arises for consideration, is, as to whether, it could be considered in favour of the opposite parties that possession of the plot, in question, was offered to the complainant, vide letter dated 16.03.2016 Annexure OP/7, or it was just a paper possession. It is very significant to mention here that it is well settled law that before offering and delivering possession of residential plot(s)/unit(s) to the allottees, builder is required to obtain occupation and completion certificates. Since, in the present case, it is a plot, as such, the complainant was not obliged to take possession thereof, unless it is complete in every respect, including the fact that completion certificate has been obtained by the opposite parties, from the Competent Authority. Similar view was taken by the National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015. It is not disputed that when possession of the plot, in question, was offered for the first time, on 16.03.2016, the opposite parties were not in possession of completion certificate. Burden to prove that the project had been completed and the area/site, in question, is fully developed is on the builder/opposite parties. 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 when offer was made to the complainant, in respect of the plot, in question, on 16.03.2016, development work was complete and that all the basic amenities were in existence. In case, all the development/ construction activities, had been undertaken, and completed at the site, by the said date, 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. As such, it is held that the possession, so allegedly offered vide letter dated 16.03.2016, Annexure OP/7 was nothing, but a paper possession and is not sustainable in the eyes of law. The complainant was not bound to take over possession of the plot, in question, under the said paper offer, irrespective of the fact that reminders were sent to her by the opposite parties, only with a view to evade their liability to compensate her, for the period of delay.

11.         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 complainant. A clear-cut promise was made to deliver possession of the plot, within a maximum period of 24 months. As stated above, it is not the case of the  opposite parties that they encountered any force majeure circumstances, as a result whereof, they were legally entitled for extension of time for delivering possession of the plots to the allottees, including the complainant.

                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 another project of the  opposite parties, in the case of Dr.Divya Dahiya Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another, Consumer Complaint No.57 of 2016, decided on 15.07.2016, wherein, it was observed as under:-

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

 

                Similar view was reiterated by this Commission, in a case titled as Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, decided on 16.08.2016 and many other cases, thereafter. It was specifically held that when there is no explanation of getting extension of 6 months’ period to deliver possession beyond the stipulated date, the benefit of exclusion of Saturdays, Sundays, Bank Holidays etc. cannot be given. Thus, in the present case also, since as per Clause 24 (a) of the Allotment Letter/Agreement, the  opposite 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, 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’ 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”;

As such, plea raised in this regard, being devoid of merit, is rejected.

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 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.         Admittedly, possession of the plot, in question, was handed over to the complainant, by the opposite parties, during pendency of this complaint, on 13.12.2018, on the orders having been passed by this Commission. Whereas, on the other hand, due date to hand over possession was 19.07.2014. The opposite parties have been utilizing the amount paid by the complainant, for more than about four years, without providing her anything, as a result whereof, financial loss was caused to her. Under these circumstances, the question, which falls for consideration, is, as to what relief can be granted to the complainant, for delay in handing over actual physical possession of the plot, in question. In  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.  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, on the deposited amount, for the period of delay, would meet the ends of justice.

                As such, in the present case, it is held that the complainant is entitled to interest @9% p.a., on the entire deposited amount, towards price of the said plot, for the period of delay i.e. from 19.07.2014 (committed date) till 28.06.2017 i.e. two months after issuance of completion certificate dated 28.04.2017, Annexure OP/9, in respect of the project, in  question.

                Besides as above, the opposite parties are also liable to pay compensation to the complainant, for providing deficient service and guilty of adoption of unfair trade practice.

14.         As far as objection taken to the effect that the complaint filed is time barred, it may be stated here that since legal possession of the plot, in question, could have been delivered to the complainant only after obtaining completion certificate and in the present case it has been obtained only on 28.04.2017, as such, the  complaint having been filed within a period of two years from the said date (28.04.2017), is within limitation. In this view of the matter, objection taken stands rejected.
15.          It was also argued by Counsel for the opposite parties that opposite parties no.3 and 4 i.e. Directors of the Company were wrongly impleaded as parties, in their personal capacity. We do not agree with the objection raised. It may be stated here that it is not the case that the above-named persons are not the 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, in this regard, stands rejected.

16.         Another vague objection was raised to the effect that since the complainant has also levelled allegations of cheating etc. in the complaint, as such, the same cannot be adjudicated by this Commission, under summary proceedings. We do not agree with the objection raised. It is a very simple case of non-delivery of possession of the plot, in question, by the promised date, despite the fact that substantial amount, referred to above, was received against the same, by the opposite parties. In the complaint itself, it has been clearly stated by the complainant that the aforesaid act of the opposite parties amounted to deficiency in providing service and adoption of unfair trade practice, thereby causing mental agony and harassment to her. If the complainant has mentioned in her complaint that the opposite parties have extracted money from her, with the motive to cheat her, that will not preclude her from filing consumer complaint before this Commission. As such, objection taken in this regard, stands rejected.   
17.         Now the final question which arises for consideration, is, as to what amount, the complainant is liable to make to the opposite parties. It is not disputed that total sale consideration of the plot, in question, was fixed  at Rs.70,58,967.30ps. It is further evident from the statement of accounts (at page 162 of the file), issued by the opposite parties, after receipt of completion certificate that, over and above the amount of Rs.70,58,967.30ps., the complainant was also liable to pay allied charges such as power backup equipment charges, utility cost etc. As such, after adding the said allied charges, the total cost payable by the complainant, to the opposite parties, comes to Rs.72,69,619.03ps. out of which an amount of Rs.66,69,972/- already stood paid by the complainant. As such, it is made clear that over and above the amount of payment of registration and stamp duty charges, to be paid by the complainant, to the Registering Authorities, an amount of Rs.5,99,647.03 is pending to be paid by her, to the opposite parties, as indicated below:-

Cost of the plot                                 =      Rs.70,58,967.30

Other allied charges to be paid:-

Power Backup equipment                 =      Rs.80,000.00

Infrastructure cost/cess                   =      Rs.62,084.28

Electric equipment cost                    =      Rs.30,017.45

Dual Source Energy Meter cost         =      Rs.26,550.00

Utility Cost                                       =      Rs.12,000.00

                                Total                =      Rs.7269619.03

Amount already paid                        =      Rs.66,69,972.00

Balance to be paid by complainant =      Rs.5,99,647.03

 

18.         It is further made clear that since the opposite parties themselves were at fault, in not offering and delivering possession of the plot, in question, by the stipulated date, as such, now they are not liable to charge any delayed interest from the complainant, especially, if she (complainant) had stopped making payment on few occasions, when she saw that development at the project is not going on and that possession is not likely to be delivered to her, by the promised date. It is settled law that the allottees of flats/plots could not be expected to go on making payments to the builder as per the payment plan, when they could discover that it is not in a position to hand over possession of the property in time, for want of construction and development at the project site.  It was so said by the National Commission in Rakesh Anand & Anr. Vs M/S. Royal Empires (Royal Minaar), First Appeal No. 1378 of 2016, decided on 09 Apr 2018. Relevant part of the said order reads thus:-

“………..It is clear from these facts that the complainants could not be expected to go on making payments to the OP builder as per the payment plan, when they could discover that the OP builder was not in a position to hand over the possession of the property in time.”

 

Furthermore, the Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, 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 had also been 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 complainant can be termed as defaulter, in case, she had stopped making payments, on few occasions, as alleged by the opposite parties. Objection taken in this regard, stands rejected.  

19.         No other point, was urged, by the contesting parties.
20.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties, jointly and severally, are directed as under: -
    1. To execute and get registered the sale deed, in respect of the plot, in question, in favour of the complainant, within a period of one month, from the date of receipt of certified copy of this order, on payment of registration and stamp duty charges by her, directly to the Registering Authorities.
    2. To pay compensation, by way of interest @9% p.a., on the entire deposited amount of Rs.66,69,972/-, to the complainant, from 19.07.2014 (promised date) till 28.06.2017 i.e. two months after issuance of completion certificate dated 28.04.2017,  within  30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.66,69,972/-,  shall further carry 3% penal interest i.e. total 12% p.a. (9% p.a. plus (+) 3% p.a.) from the date of passing of this order 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, and cost of litigation, to the tune of Rs.35,000/- to the complainant, within 30 days from the date of passing of this order, failing which, thereafter, the said amount of Rs.1,50,000/- and Rs.35,000/- shall further carry interest @9% p.a. from the date of passing of this order till realization.
21.         However, the opposite parties are at liberty, to deduct/adjust the amount of Rs.5,99,647.03ps., payable by the complainant, out of the compensation amount, which would arrive, in lieu of directions given in para no.20 above.

                It is further made clear, that, in case, the complainant had already paid an amount of Rs.4 lacs, over and above the amount of Rs.66,69,972/- to the opposite parties, as ordered by this Commission, on 04.12.2018 during pendency of this complaint, before taking over possession of the plot, in question, in that event, she will be liable to pay only the remaining amount of Rs.1,99,647.03ps., (Rs.5,99,647.03ps. minus (-) Rs.4 lacs) to the opposite parties and deduction/adjustment shall be made by them (opposite parties) to that extent only, accordingly.

22.         Certified Copies of this order be sent to the parties, free of charge.
23.         The file be consigned to Record Room, after completion.

Pronounced.

20.09.2019

Sd/-

 (JUSTICE  RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

 

 Rg.