Chandigarh

StateCommission

CC/245/2018

Geetanjali Sood - Complainant(s)

Versus

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

S K Sud, Adv.

31 Oct 2018

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	245 of 2018
Date of Institution	:	29.05.2018
Date of Decision	:	31.10.2018

 

Geetanjali Sood aged about 36 years wife of Sh.Gopal Jagota (daughter of Sh.Vinayak Sood), resident of #114/164, 45^th Floor, Tower-D, Millennium Residence,  Sukhmvit Soy 20, Bangkok (Thailand) at present Resident of House No.129, Sector 6, Panchkula.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Extension Developers Private Limited, through its Managing Director, Corporate Office at 10, L.S.C., Kalkaji, New Delhi-110019.

2^nd Address:-

M/s Omaxe Chandigarh Extension Developers Private Limited, through its Managing Director, Regional Office: SCO No.139-140, Sector 8-C, Madhya Marg, Chandigarh-160008, through its Manager/Authorized Signatory/Officer-in-Charge/Director, Sales and Marketing.

3^rd Address:-

M/s Omaxe Chandigarh Extension Developers Private Limited, through its Managing Director, Registered Office at Omaxe City, 111^th Mile Stone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Expressway, Jaipur 302026.

….Opposite party

 

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.Satyajeet Singh, Advocate for the complainant.

Sh.Munish Gupta, Advocate for the opposite party.

JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainant has filed this complaint, seeking refund of amount of Rs.49,61,130/-, paid by her, from time to time, to the opposite party, towards price of plot bearing No.OCE/II/827, measuring 300 square yards, purchased in resale, from her predecessor namely M/s Usha Investment, in the project launched by it (opposite party), under the name and style, ‘Omaxe Chandigarh Extension’, New Chandigarh, Mullanpur, Punjab. Total price of the said plot was fixed at Rs.52,06,453.37ps., inclusive of all charges. When the plot, in question, was purchased by the complainant, in resale, vide transfer letter Annexure C-6, neither allotment letter had been issued nor buyer agreement was executed between her predecessor and opposite party. However, an amount of Rs.22,83,000/- which stood already paid by predecessor of the complainant, in the following manner, before allotment of plot and execution of agreement, was repaid by her (complainant) to it (predecessor):-

 

Date	Amount
11.01.2011	1417500.00
15.06.2011	850500.00
11.11.2011	12500.00
11.11.2011	2500.00
Total	22,83,000.00

 

Thereafter, provisional allotment in respect of the plot bearing No.OCE/II/827, was issued in favour of complainant, vide letter dated 12.12.2011 Annexure C-7. It was stated that, thereafter, as per demands raised, the complainant made payment to the opposite party from time to time. It was also pleaded that despite a fact that, by 06.01.2012, an amount of Rs.49,61,130/- against Rs.52,06,453.37ps., stood paid by the complainant, to the opposite party, plot buyers’ agreement in respect of plot bearing no. OCE/827 was not sent for her signatures.  However, to the utter shock of the complainant, she received letter dated 26.08.2014 from the opposite party, whereby, she was offered relocation to plot bearing no.OCE/II/446CF8, instead of plot bearing No.OCE/II/827 i.e. after three and a half years of allotment and that too after receiving more than 95% against its price (plot bearing No.OCE/II/827). Even the price of the plot which was offered for relocation, was increased by the opposite party. The complainant wrote letter to the opposite party, wherein she made clear that relocation is not acceptable to her. Request was made to hand over possession of originally allotted plot bearing No.OCE/II/827 but to of no avail. It was further stated that the opposite party arbitrarily sent agreement in respect of plot, which was offered for relocation. It was not signed by the complainant, as the same was not acceptable to her because even the area where offer for relocation was given, was also not developed. Under above circumstances, the complainant made request to the opposite party to refund the amount deposited alongwith interest etc. but it flatly refused to do so. By alleging that the aforesaid acts of the opposite party amounted to deficiency in providing service and also adoption of unfair trade practice, the present complaint has been filed by the complainant, seeking refund of amount paid alongwith interest etc.

2.         In the reply filed by the opposite party, many preliminary objections were raised, to defeat genuine claim of the complainant. It was averred that the complainant being an NRI did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, as such, she being investor had purchased the plot, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. Territorial and pecuniary jurisdiction of this Commission was challenged. It was pleaded that since she is a subsequent purchaser, as such, she did not fall within the definition of consumer. It was also stated that as per Clause 44 (c) of the Allotment Letter/Agreement, this Commission has no jurisdiction, to entertain and decide dispute between the parties, because as per above said provision, for settlement of dispute, the matter needs to be referred to an arbitrator for adjudication. It was pleaded that complaint filed is beyond limitation. It was averred that the affidavit filed in support of the complaint is defective, as such, it is liable to be dismissed on this ground alone.
3.         On merits, purchase of plot bearing No.OCE/II/827, by the complainant, in resale, in the manner explained above, is not disputed. Allotment of plot, in question, vide provisional allotment letter dated 12.12.2011 was also not disputed. It was also not disputed that by 06.01.2012, more than 95% of sale consideration of the plot bearing No.OCE/II/827, was received by the opposite party. It was fairly admitted that the complainant was offered relocation to plot bearing no.446CF8, for the first time, vide letter dated 26.08.2014. It was stated that relocation was offered to the complainant, as the earlier allotted plot was in isolation, as such, it was for her betterment only. The area where the complainant was offered relocation was fully developed. It was averred that buyer’s agreement in respect of relocated plot was sent to the complainant for her signatures, on 15.05.2015, but she failed to do so. As such, delay, if any, is on the part of the complainant. It was averred that since the agreement has not been signed by the complainant till date, as such, the question of delivery of possession of the plot, within a period of 18 months, from the date of allotment, with extended period of 6 months, did not at all arise. It was stated that increase in price of relocated plot was on account of the reason that its area was more than the originally allotted plot. The complainant has failed to make payment of the remaining amount, despite repeated reminders having been sent to her. Prayer was made to dismiss the complaint.
4.         The parties led evidence in support of their case.
5.         Counsel for the parties raised arguments, in tune of the facts narrated above.
6.         We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully.
7.         First, we will deal with the objection, raised by the opposite party, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

                In the first instance, it may be stated here that, since admittedly, in the present case, agreement has not been executed between the parties, as such, no clause thereof, could be relied upon. Even otherwise, 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 no jurisdiction to entertain the consumer complaint, has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

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

8.         Now we will like to decide an objection raised by the opposite party that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  Relevant part of the said order reads thus:-

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

In the present case, total value of the plot, in question, i.e. Rs.52,06,453.37ps, plus compensation claimed by way of interest @12% p.a. on the deposited amount of Rs.49,61,130/- and also Rs.2 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 party, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

9.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case, it is evident that the request form Annexure C-6, in respect of assignment of allotment rights of plot bearing No.OCE/II/827 was moved by the complainant to Chandigarh Office of the opposite party i.e. SCO No.143-144, Sector 8, Chandigarh, which admittedly was accepted by it. It is further evident that letter dated 15.05.2015 (at page 27 of the file), alongwith which, buyer’s agreement was sent to the complainant for her signatures in respect of relocated plot, was also dispatched from the said office at Chandigarh, as it bore round stamp of the said office (Chandigarh Office). Not only as above, the said address of Chandigarh Office of the opposite party, 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 the complaint.  The objection taken by the opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

10.         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 party that the complainant being NRI, had purchased the plot, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices, does not carry any weight and is liable to be rejected. It has been mentioned by the complainant, in her complaint, that the said plot was purchased by her, for her residential purpose, after coming back from Bangkok. On the other hand, nothing contrary to this, has been proved by the opposite party, by placing on record, any document. 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.”

 

                At the time of arguments, it was argued with vehemence by Counsel for the opposite party that since the complainant is an NRI, as such, she would not fall within the definition of consumer. It may be stated here that, no law debars NRIs, 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 party, therefore, being devoid of merit, is rejected.  

11.         It is not in dispute that the complainant had purchased plot bearing No.OCE/II/827, measuring 300 square yards, in resale, from her predecessor namely M/s Usha Investment, in the said project, for Rs.52,06,453.37ps., inclusive of all charges. It is also not disputed that at the time of sale of said plot, the amount of Rs.22,83,000/- which stood already paid by predecessor of the complainant, was repaid by her (complainant) to it (predecessor). After completion of all formalities, resale of plot was endorsed by the opposite party itself, in favour of the complainant. It is also not disputed that, thereafter, instead of sending buyer’s agreement, in respect of plot bearing No.OCE/II/827, the opposite party kept on making demands from the complainant and by 06.01.2012, it had received Rs.49,61,130/- against Rs.52,06,453.37ps., from the complainant. Thereafter also, agreement was not sent for signatures, to the complainant. From the facts narrated in this paragraph, which goes undisputed by the opposite party, it is evident that it (opposite party) kept on receiving amount from the complainant, in the absence of execution of allotment letter/agreement. Whereas, it was the bounden duty of the opposite party, to send allotment letter/agreement to the predecessor of the complainant within a period of two to three months, or thereafter to her (complainant), for her signatures, after receiving about 25% of the sale consideration, but it failed to do so, which act amounts to deficiency in providing service and adoption of unfair trade practice. 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”.

 

                Unfair trade practice and deficiency in providing service, on the part of the opposite party did not stop there. It received almost the entire basic sale price of the plot bearing No.OCE/II/827, which appears not to be in existence even, at the project site, as no cogent reason, by way of placing material evidence on record, has been assigned by the opposite party, which forced it to offer relocation to plot bearing no.OCE/II/446CF8 and that too after a long delay i.e. on 26.08.2014. On the other hand, a very casual and vague reply has been given by the opposite party that the complainant was offered relocation, to make her comfortable, as the original plot bearing No.OCE/II/827 purchased by her was in isolation with development in the vicinity. However, there is nothing on record, which proves that the complainant had requested to relocate her from plot bearing No.OCE/II/827, to make her more comfortable. Under these circumstances, an adverse inference can easily be drawn against the opposite party, that it was concealed from the predecessor of the complainant and also from her (complainant), that the plot bearing No.OCE/II/827 was not in existence at the project site, but even then it kept on receiving amount from her and when she started taking up the matter regarding its delivery of possession, as there was an inordinate delay, in the matter, she was offered relocation and was sent buyer’s agreement in respect of the relocated plot, on 15.05.2015 i.e. after about more than four years of allotment of original plot against which more than 95% of amount had already been received by it (opposite party). However, even then, the opposite party has courage to say that the complainant is a defaulter, as she failed to pay the remaining sale consideration towards relocated plot bearing no.OCE/II/446CF8. As such, under circumstances, narrated in this paragraph, a question which fell for determination, is, as to whether, the complainant was bound to accept offer of alternative/relocated plot or that she was right in refusing to sign the agreement in respect of the same (relocated/alternative plot) and sought refund of the amount deposited alongwith interest?.

                It is an admitted case that the opposite party failed to offer possession of the plot bearing No.OCE/II/827 which was allotted in favour of the complainant, vide letter dated 12.12.2011. However, thereafter, as stated above, the opposite party kept on receiving amount from the complainant and by 06.01.2012, it had received Rs.49,61,130/-, against total sale consideration of Rs.52,06,453.37ps., yet, neither agreement was sent for signatures nor possession was offered within a reasonable period say two or three years. Whereas, on the other hand, after about more than four and a half years (4 ½ years), the opposite party being in a dominating position, compelled her to accept an alternate plot, by way of offering relocation, to which she refused, as the area where the said relocation was offered, was also not developed. On the other hand, except bald assertion, no cogent and convincing evidence has been placed on record by the opposite party that even the relocated site was developed. Be that as it may, a similar question, as to whether, the buyer is bound to accept offer of relocation, if the developer fails to deliver possession of the allotted plot/flat within the stipulated time, fell for determination before the National Commission, 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. The National Commission answered the said question, in the negative, while holding as under:-

“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, keeping in mind the law laid down by the National Commission, it is held that the complainant was not bound to accept offer of alternative/relocated plot and was right in refusing to sign the agreement in respect of the same (relocated/alternative plot). Since possession of the originally allotted plot was not offered to the complainant, for want of its existence, at the project site, the complainant was further right in seeking refund of the amount paid, alongwith interest etc., instead of signing agreement sent to her for her signatures, in respect of plot bearing no.OCE/II/446CF8.  The complainant cannot be made to wait for an indefinite period, at the whims and fancies of the opposite party. The complainant, is, thus, held entitled to refund of the entire amount deposited by her, with the opposite party.  

12.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.49,61,130/- was paid by the complainant towards price of the said plot. The said amount has been used by the opposite party, for its own benefit.  Once it has been held above that the complainant is not bound to accept offer of relocated plot, as such, she is entitled to get  the amount paid by her, alongwith interest. She has been caused a huge financial loss. Furthermore, it is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is entitled to get refund of the amount deposited by her, to the tune Rs.49,61,130/- alongwith interest @12% p.a., from the actual dates of deposits till realization. In the present case, since the complainant had purchased plot bearing No.OCE/II/827, in resale, as such, she is entitled to get interest on the entire amount, starting from the date of endorsement of the said plot, in her favour and thereafter onwards.
13.         Another objection was raised by the opposite party, that since the complainant is a reallottee, as such, she is not a consumer. It is not in dispute, that the complainant had purchased the plot, in resale, in the manner, referred to above. The said sale transaction was endorsed by the opposite party only, in her favour. It is well settled law that once the property is transferred/endorsed, in the name of the buyer(s) from the original owner, he/she, is vested with all the rights and interests, accrued in favour of his/her predecessor(s), as he/she stepped into her/his shoes. It was also so said by the National Consumer Commission, New Delhi in case Vatika Limited   Vs Mr. Rajneesh Aggarwal, Revision Petition No. 525 of 2013, decided on 22.07.2014, wherein the complainant was the fourth subsequent allottee. In that case, the National Commission, held as under:-  

“So far as the case of Raje Ram is concerned, the facts of the present case are totally different. In the present case, the respondent/complainant had purchased the apartment in question from the first transferee on 29.4.2006 when the construction had not been completed and   purchase/transfer of the apartment was duly approved by the petitioner company after charging Rs.65,840/- as transfer charges. In the circumstances, the petitioner company could not deny its role as a service provider to the respondent/complainant and has to be held liable for any deficiency in service with reference to the terms and conditions of the agreement which was made equally applicable to the complainant also consequent upon the approval of the assignment by the petitioner company on 30.4.2006 on payment of the transfer charges to the petitioner company. For the reasons stated above, we do not find any merit in the revision petition and the same is dismissed accordingly but with no order as to costs.”

                The principle of law laid down in the aforesaid case, decided by the National Commission is fully applicable to the present case. In view of the above, argument raised by the opposite party, being devoid of merit, is rejected.

14.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. It may be stated here that since it is an admitted case that offer of possession of the originally allotted plot bearing No.OCE/II/827 was never made to the complainant, within a reasonable period of two to three years, from the date of allotment or even thereafter, till date and on the other hand, amount deposited was also not refunded to the her, despite requests having been made by her, alongwith interest, and also it has been held by this Commission that she was not bound to accept relocation, as such, there is continuing cause of action, in her favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC).

                Furthermore, since the opposite party is still utilizing the amount paid by the complainant, and has not refunded the same, despite the fact that request was made by her, as such, in that event also, there is a continuing cause of action in her favour, in view of law laid down by the National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No. 340 of 2011, decided on 31 Aug 2016 and Saroj Kharbanda Versus Bigjo's Estates Limited, First Appeal No. 986 of 2016, decided on 01 Feb 2018, in which it was held that the builder/opposite party cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount. Relevant part is reproduced hereunder: -

“On the other hand, the OP builder has also not been able to explain as to why they were keeping and enjoying the money deposited by the complainant all these years. They could have cancelled the allotment made in favour of the complainant and made attempts to return the money deposited in terms of the agreement/understanding between the parties, but they did not do so. Since, the part amount deposited by the complainant has been lying with the OP for all these years, it would not be justified to conclude that the complaint is barred by limitation. This is, therefore a case of continuing cause of action, because the OP builder had no right to forfeit the money deposited by the complainant.”

 Under these circumstances, it is held that the complaint is not at all barred by limitation. Plea taken by opposite party, in this regard, being devoid of merit, must fail, and the same stands rejected.

15.         Now coming to the objection raised by the opposite party, regarding affidavit filed by the complainant, it may be stated here that we have gone through the same and found that each and every page of the said affidavit has been self-certified by the complainant, by way of her signatures, which is further notarized by the Notarial Service Authority, Thailand. However, as per Notification No.24(6)/2014-CPU dated 27.05.2014, issued by Government of India, Ministry of Consumer Affairs, Food & Public Distribution, Department of Consumer Affairs, New Delhi, it was directed to all the Consumer Foras that the consumer(s) should not be forced to file affidavit, as required in Judicial Courts and only self-attested documents/affidavits should suffice, while filing complaint(s). Therefore, it was not required by the complainant, to get the said affidavit notarized even. Furthermore, 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 party, in this regard, therefore being devoid of merit stands rejected.

16.         No other point, was urged, by the contesting parties.
17.         For the reasons recorded above, this complaint is partly accepted with costs, with following directions to the opposite party, as under:-

1. To refund the amount Rs.49,61,130/- to the complainant, alongwith interest @12% p.a., from the respective dates of deposits onwards. However, it is made clear that the payment of interest on the entire amount received by opposite party, shall start  from the date of purchase/endorsement of the plot, in question, onwards, by her (complainant).
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant, and also deficiency in providing service and adoption of unfair trade practice.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.

18.         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.
19.         However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said plot, it will have the first charge of the amount payable, to the extent, the same is due to be paid by her (complainant).
20.         Certified Copies of this order be sent to the parties, free of charge.
21.         The file be consigned to Record Room, after completion.

Pronounced.

31.10.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

Sd/-

(RAJESH K. ARYA)

MEMBER.

 Rg