Chandigarh

StateCommission

CC/301/2018

Shri Rajinder Garg - Complainant(s)

Versus

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

Amitabh Suri, Adv.

21 Dec 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	301 of 2018
Date of Institution	:	25.07.2018
Date of Decision	:	21.12.2018

Shri Rajinder Garg aged 56 years, son of Late Shri Des Raj Garg, resident of House No.124, Sector 17, Panchkula, Haryana.
Shri Rajiv Batta aged 57 years, son of Late Shri Baldev Krishan Batta, resident of House C/o No.124, Sector 17, Panchkula, Haryana.

Permanent address of House No.15548 Columbia Ave White Rock British Colombia V4B-1K4, Canada.

……Complainants

V e r s u s

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., having Registered Corp. Office 10 L.S.C. Kalkaji, New Delhi, through its Managing Director Mr.Rohtas Goel

2^nd Address:- M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., S.C.O. 143-144, Sector 8-C, Chandigarh, through its Managing Director

3^rd Address:-

M/s Omaxe Chandigarh Extension, Site Address: In the Revenue Estate of Villages Kansala, Parol, Kartarpur, Rani Majra Takipur Boothgarh, Dhode Majra Rasoolpur and Bhagat Majra in Mullanpur LPA (GMADA) District S.A.S. Nagar (Mullanpur), Punjab, through its Managing Director.

.... Opposite Party

Argued by: Sh. Amitabh Suri, Advocate for the complainants.

Sh. Ashim Aggarwal, Advocate for the opposite party.

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Complaint case No.	:	126 of 2018
Date of Institution	:	02.04.2018
Date of Decision	:	21.12.2018

Smt.Promila Bansal aged 58 wife of Balraj Bansal C/o Vijay Garg, House No.30, Sector 8, Panchkula, Haryana.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., having Registered Corp. Office 10 L.S.C. Kalkaji, New Delhi, through its Directors, Partners, Chief Executive Officer and Managing Director, Mr.Rohtas Goel.

2^nd Address:- M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., S.C.O. 143-144, Sector 8-C, Chandigarh, through its Directors, Partners, Chief Executive Officer and Managing Director, Mr.Rohtas Goel.

3^rd Address:-

.... Opposite Party

Argued by: Sh.Amitabh Suri, Advocate for the complainant.

Sh.Ashim Aggarwal, Advocate for the opposite party.

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

Complaint case No.	:	127 of 2018
Date of Institution	:	02.04.2018
Date of Decision	:	21.12.2018

Shri Vijay Garg aged 61 years Son of Late Shri Des Raj Garg, resident of House No.30, Sector 8, Panchkula, Haryana.

……Complainant

V e r s u s

2^nd Address:- M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., S.C.O. 143-144, Sector 8-C, Chandigarh, through its Directors, Partners, Chief Executive Officer and Managing Director.

3^rd Address:-

.... Opposite Party

Argued by: Sh. Amitabh Suri, Advocate for the complainant.

Sh. Ashim Aggarwal, Advocate for the opposite party.

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

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

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

MRS.PADMA PANDEY, MEMBER

SH.RAJESH K. ARYA, MEMBER

PER PADMA PANDEY, MEMBER

By this order, we propose to dispose of aforesaid three consumer complaints, filed by the respective complainants. Arguments in the said complaints were heard in common, on 15.11.2018. In all the complaints, referred to above, issues involved, except minor variations, here and there, of law and facts are the same. All the complainants have sought directions to the opposite party to deliver actual physical possession of the plot(s), in dispute; to pay compensation for the period of delay in delivering possession thereof, alongwith interest, compensation etc. As such, during arguments, it was agreed by the contesting parties, that all the three complaints can be disposed of, by passing a consolidated order.

To dictate order, facts are being taken from Consumer Complaint bearing No.301 of 2018 titled as Shri Rajinder Garg and another Vs. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. The complainants have filed this complaint seeking directions to the opposite party to deliver possession of plot bearing no.OCE/558DWI, measuring 305.08 square yards, purchased in its project, named ‘Omaxe New Chandigarh’, Mullanpur, Punjab, total cost whereof was fixed at Rs.58,46,012/- inclusive of all charges. It is definite case of the complainants that despite the fact that as per demands raised by the opposite party from time to time, they have paid substantial amount of Rs.55,85,158/- towards price of the said plot, yet, it failed to deliver possession thereof, within a period of 18 months plus 6 months totaling 24 months from the date of booking i.e. on or before 03.01.2013 (date of booking being 04.01.2011). It was pleaded that provisional allotment letter, in respect of the plot, in question, was issued in favour of the complainants on 22.11.2012, yet, till today, agreement was not sent for their signatures. Number of requests made in the matter, failed to yield any result. It was averred that the aforesaid act of the opposite party amounted to deficiency in providing service and adoption of unfair trade practice. Hence this complaint.
In the written reply filed by the opposite party, it was stated that the complainants being Foreign Nationals (NRIs) did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act. They are investors. They purchased the said plot, in order to resell the same, to earn profits in future. Pecuniary and territorial jurisdiction of this Commission was challenged. It was pleaded that since, no definite period was committed to hand over possession of the plot, in question, 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. In the same breath, it was pleaded that the complaint filed is barred by time.
It was stated that the complainants defaulted in making payment towards price of the said plot. Many reminders were sent to them, in the matter. As such, they cannot seek compensation, for the period of delay, in handing over possession of the plot. It was averred that agreement was sent to the complainants, for signatures, through DTDC courier, on 30.01.2013, but they failed to return the same. Date of possession has to be reckoned from the date of execution of the agreement and not from the date of booking of the plot, in question. It was stated that the complainants also concealed material fact from this Commission, with regard to filing of earlier consumer complaint bearing no.753 of 2017, on the same cause of action, which was withdrawn by them on 20.07.2018, due to technical objections. Prayer was made to dismiss the complaint.
In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite party.
The parties led evidence in support of their cases.
We have heard the contesting parties and have gone through the evidence and record of the cases, very carefully.
It is not disputed that the complainants have paid substantial amount of Rs.55,85,158/- towards price of the said plot, against total sale consideration of Rs.58,46,012/-. It is also not disputed that till date, possession of the plot, has not been offered to the complainants. As such, at this stage, the question which falls for consideration, is, as to by which date/period, possession of the plot, in question, was to be delivered to the complainants by the opposite party. Since, in the present case, buyer’s agreement/allotment letter containing detailed terms and conditions has admittedly not been executed between the parties, as such, this Commission has no option than to rely upon the terms and conditions agreed to between the parties, vide application form dated 04.01.2011, Annexure OP/2, placed on record by the opposite party. As per Clause 18 of terms and conditions contained in the said application form (at page 13), the opposite party committed to hand over possession of the plot, as early as possible, subject of force majeure circumstances. Admittedly, in the present case, no force majeure circumstances, have been claimed by the opposite party. Under these circumstances, when no specific date/period has been assigned by the opposite party, for delivery of possession of the plot, in question, this Commission is inclined to rely upon the ratio of law laid down by the Hon’ble Supreme Court of India, in the case titled as M/s. Fortune Infrastructure (Now Known As M/s. Hicon Infrastructure) & Anr. Versus Trevor D’lima & Ors., Civil Appeal No(s).3533-3534 of 2017, decided on March 12, 2018, in which it was held that when there is no period of delivery of possession stipulated in the contract, a time period of 3 (three) years would be taken as reasonable period, for completion of the contract and delivery of possession of the unit(s)/plot(s). Relevant part of the said order reads thus:-

“Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014”.

As such, if reasonable period of three years is counted from the date of booking of the plot, in question, i.e. from 04.01.2011, the opposite party was bound to offer and deliver possession thereof to the complainants, latest by 03.01.2014, but it miserably failed to do so.

However, just with a view to defeat claim of the complainants, various objections, as reflected in the facts above, were taken by the opposite party, yet, not a single reason has been assigned by it, as to why, till date, possession of the plot in question, was not offered and delivered to the complainants, which was booked as far as back in January 2011 i.e. more than 7 ½ years ago. Nothing has been mentioned in the written reply, as to, at what stage, development of the project has reached, by the date when reply was filed in this complaint. At the time of arguments also, when specific questions were put to Counsel for the opposite party, regarding date of offer/delivery of possession of the plot; status of development at the project site; reason for delay in offer of possession, he was not having any convincing answer. It was only said that possession of the plot will be offered and delivered shortly. It is well settled law that onus to prove that the project has been completed and the area/site, in question, is fully developed, or it is about to complete, is on the builder/opposite party. 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. In the present case, it is very strange that not even a single document has been placed on record, by the opposite party, in respect of the project in question, to prove that the development activities are being undertaken and are going to be completed shortly. The opposite party only, could have proved this fact, being in possession of the best evidence, by placing on record cogent and convincing documentary evidence, in the shape of reports and affidavits of the Engineers/Architects, to testify the same, but it failed to do so. Under these circumstances, it can safely be said that the opposite party by receiving substantial amount of Rs.55,85,158/- towards price of the said plot, against total sale consideration of Rs.58,46,012/- from the complainants and on the other hand, not offering and delivering possession of the plot, thereof to them, despite the fact that more than 7 ½ years have elapsed, indulged into unfair trade practice and was also deficient in providing service.

Counsel for the opposite party argued with vehemence that in the present case, buyer’s agreement was sent to the complainants, on 30.01.2013, vide courier receipt Annexure OP/4, but they failed to return the same. On the other hand, the complainants have denied receipt of the agreement. The only evidence, reliance whereupon has been placed by the opposite party is the courier receipt Annexure OP-4, to prove that buyer’s agreement was sent to the complainants on 30.01.2013. We have gone through the said courier receipt very carefully, authenticity whereof is doubtful. On the said courier receipt neither complete address of the sender; nor complete address of the consignee; nor the year in which it was sent (only written thereon as 30/1); nor the amount charged; nor the weight of the article; nor the signature of the authorized representative of Courier Agency, are found mentioned. As such, in the absence of above particulars in the courier receipt, it is nothing but a piece of paper, which cannot be considered as evidence, and, as such, no help can be drawn by the opposite party therefrom. It is, therefore, held that buyer’s agreement was never sent by the opposite party to the complainants. As per the provisions of Section 6 of the PAPRA, it is incumbent upon the project proponent to execute Buyer’s Agreement on accepting application for purchase of unit etc., within a reasonable time say about two to three months. By not offering Buyer’s Agreement, for signing within reasonable time or even thereafter, the opposite party committed unfair trade practice and also was deficient in providing service. 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”.

Since it has been held above that buyer’s agreement was never sent to the complainants, by the opposite party, as such, contentions raised to the effect that since no specific period for delivery of possession was mentioned in the said agreement or that any period, if assumed, has to be from the date of signing of the said agreement; have no significant value in the eyes of law. At the same time, since no payment plan was provided to the complainants, to make payment towards price of the said plot, as such, they cannot be termed as defaulters. The document containing detailed terms and conditions, which was never executed between the parties, the same (terms and conditions) cannot be relied upon, as far as the present case is concerned. Contention raised by Counsel for the opposite party in this regard, being devoid of merit, is rejected.

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, where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016. In the present case, total value of the plot, in question i.e. Rs.58,46,012/-; plus compensation claimed by way of interest @10% p.a. on the deposited amount of Rs.55,85,158/- for the period of delay; and also Rs.10 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. Objection taken by the opposite party, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident that provisional allotment letter dated 22.11.2012 Annexure C-1 in respect of the plot, in question, was issued by Chandigarh Office of the opposite party i.e. SCO No.139-140, Sector 8-C, Chandigarh. The said letter also bears round stamp of the Chandigarh Office. Furthermore, even the payment demand letters, reliance whereupon has been placed by the opposite party reveal that the same have also been issued in favour of the complainants, from its Chandigarh Office. The said address of Chandigarh Office of the opposite party, is found mentioned on almost all the letters/documents (except one), placed on record. 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 this complaint. 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.

The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. It may be stated here that since it is an admitted case that offer of possession of the plot, in question, could not be made within a reasonable period of three years from the date of booking i.e. latest by the year 2014 or even till date, for want of development at the project site, and still the complainants are empty handed, as such, there is continuing cause of action, in their favour, in view of principle of law laid down, in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by limitation. The submission of Counsel for the opposite party, in this regard, being devoid of merit, must fail, and the same stands rejected.

Once a specific objection was taken by the opposite party to the effect that the complaint filed is beyond limitation/time barred, as such, in the same breath, taking a plea that time was not the essence of contract, is not sustainable and accordingly rejected.

At the time of arguments, it was argued with vehemence by Counsel for the opposite party that since the complainants are NRIs/Foreign Nationals, as such, they would not fall within the definition of consumer. To strengthen his argument, he placed heavy reliance on judgment of the National Commission titled as Manohar Damecha Vs. Lavasa Corporation Limited, Consumer Complaint bearing No.1326 of 2015. We have gone through the complete judgment, reliance whereupon has been placed by the opposite party and found that, in a very clandestine manner, in its written version, the line mentioning “By no stretch of imagination, it can be held that 6^th house was purchased exclusively for the purposes of livelihood by means of self-employment of the complainant”, has deliberately not been copied and typed therein (written reply) by the opposite party, with a view that this Commission is not able to know that the said judgment was passed against the complainant (NRI) therein, on account of the fact that the unit, in dispute, therein was the 6^th house purchased by the NRI, in India. Apart from that, the complainant therein was also having number of commercial properties in his name. The complete paragraph of the said judgment reads thus:-

“By no stretch of imagination, it can be held that 6^th house was purchased exclusively for the purposes of livelihood by means of self-employment of the complainant. In case the NRIs, like the complainant, is allowed to save the court fees, the very purpose of ordinary consumer or as defined by the Act, shall stand defeated. Consequently, we find that the present case is not maintainable and the same is, therefore, dismissed in limine. However, there lies no rub for the complainant to seek remedy before any other appropriate forum or civil court, as per law. Further, he may seek help from the celebrated authority, reported in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, so far as the question of limitation is concerned.”

It was on account of that reason i.e. the complainant in the said case who was an NRI had purchased 6 houses, apart from having commercial properties, it was held by the National Commission that the consumer complaint was not maintainable. Whereas, in the present case, there is nothing on record to prove that the complainants are the owners of number of houses and commercial properties. Also, there is nothing, on the record, that the complainants are property dealers and deal in the sale and purchase of property, on regular basis. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only as above, under similar circumstances, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

Furthermore, 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.”

Under above circumstances, the ratio of law laid down in another judgment relied upon by the opposite party titled as Kishore Samrite Vs. state of U.P. and Ors. (2013) 2 SCC 39, in which it was said that no litigant can play hide and seek with the courts or adopt pick and choose, has gone against the opposite party itself and not the complainants. 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 party, therefore, being devoid of merit, is rejected.

As far as objection taken regarding filing of earlier consumer complaint by the complainants, before this Commission, is concerned, it may be stated here that the said complaint was withdrawn with liberty to file a fresh one, after rectifying the defects therein. It is not the case of the opposite party that the complainants had earlier filed complaint on the same cause of action before any other State Consumer Commission, which had been dismissed and now they are before this Commission, by concealing the said fact. It is also not the case of the opposite party that despite the fact that liberty was not granted for filing fresh complaint, yet, this complaint has again been filed by the complainants. As stated above, while withdrawing the earlier complaint, liberty was granted to the complainants, to file a fresh complaint, after removing the defects pointed out by this Commission. No prejudice had been caused to the opposite party, when the earlier complaint was withdrawn with liberty to file it again or at the time of filing this complaint, afresh, by the complainants. Objection taken in this regard, being devoid of merit, is rejected.
In connected consumer complaints, referred to above, it was contended by Counsel for the opposite party that in the face of existence of arbitration Clause in the allotment letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint or not. This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, wherein, 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), it was 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.

As such, objection raised by the opposite party, in this regard, stands rejected.

The opposite party also took objection, in these connected cases that since as per Clause 44 (c) of the Agreement, it was mutually agreed to between the parties that the Courts at Punjab and Delhi only, shall have Jurisdiction, to entertain and adjudicate the dispute(s) in respect of the plot(s), in dispute, 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 complainants 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 them (complainants), to file the complaint. In view of above, objection taken by the opposite party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
In the connected cases, the opposite party claims to have offered possession to the complainant(s), within the stipulated period contained in the agreement. As such, the next question that falls for consideration, is, as to whether, there was any delay in offering possession of the respective plots, to the complainants, in the connected cases, referred to above, or not. For this, it is to be ascertained by this Commission, as to what was the committed period and from which date the said period was to be counted from. In both these cases, the opposite party is claiming that agreement was sent to the complainant(s), for their signatures, in the year 2012, respectively, but they failed to return the same to the Company. Whereas, on the other hand, the complainants have denied receipt of such agreement. However, the opposite party has placed heavy reliance on letter dated 16.04.2012 Annexure OP/3 (in CC No.127 of 2018) and 14.04.2012 Annexure OP/3 (in CC No.126 of 2018), vide which it claims that it has forwarded allotment letter/agreement, to the respective complainants. We have gone through contents of the said letters, which reveal that the complainants were asked to sign each and every page of the said allotment letter/agreement and return the same to the Company within a period of 15 days from the date of issuance thereof. It was further made clear in the said letter that, failure on the part of the complainants to return the allotment letter/agreement, shall give presumption of their acceptance of the terms and conditions contained therein meaning thereby that the said allotment letter/agreement was deemed to have been signed and accepted by the complainants on 01.05.2012 and 29.04.2012 respectively (after 15 days of receipt of letters aforesaid). Now if we go through Clause 24(a) of the said agreement, it says that the company was to complete the development of the Plot/Project within 18 (Eighteen) months or within an extended period of six months from the date of signing of the Allotment Letter/Agreement by the Allottee(s). Relevant portion of the said Clause reads thus:-

““The Company shall put its best efforts to complete the development of the Plot/Project within 18 (Eighteen) months or within an extended period of six months from the date of signing of this Allotment Letter by the Allottee(s) subject to force majeure conditions (as mentioned in Clause (b) hereunder) and subject to various Plot Allottee(s) making timely or subject to any other reasons beyond the control of the Company. ………………...”

Under above circumstances, since the opposite party was to presume acceptance of terms and conditions of the agreement sent to the complainants, after 15 days of receipt of letters dated 16.04.2012, in CC No.127 of 2018, and 14.04.2012, in CC No.126 of 2018, irrespective of fact that they (complainants) send the same back after signatures or not, the committed period i.e. 24 months aforesaid, for delivery of possession of the plot, in CC No.127 of 2018, will be counted from 01.05.2012 (15 days from issuance of letter dated 16.04.2012) and in CC No.126 of 2018, from 29.04.2012 (15 days from issuance of letter dated 14.04.2012). In this manner, the opposite party was legally bound to deliver possession to the complainant in CC No.127 of 2018 on or before 30.04.2014 and in CC No.126 of 2018 on or before 28.04.2014. In view of above fact, plea taken by opposite party to the effect that the period 24 months for delivery of possession of the respective plots, would be counted from the dates mentioned in the respective agreements, in both the cases i.e. from 17.01.2015 and 11.12.2014, being devoid of merit and falsified from the contents of their own letters dated 16.04.2012, in CC No.127 of 2018 and 14.04.2012, in CC No.126 of 2018, stands rejected.

In these connected cases, it was also argued by Counsel for the opposite party that, as per terms and conditions of the Allotment Letter/Agreement, when computing the period of delivery of possession of the plot, Sundays, Saturdays, Bank Holidays, etc. are to be ignored. We feel that the contention raised is liable to be rejected. It may be stated here that in Clause 24(a) of the allotment letter, it is stated that possession of the plot will be delivered within 18 months, from the date of signing of allotment letter by the allottee, with six months’ extension period. It is further stated that when computing the said period all Saturdays, Sundays and Bank Holidays will be excluded. Similar issue has been dealt with, 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. In view of above, the plea of the opposite party in this regard stands rejected.

At the same time, it is also submitted that the opposite party cannot evade its liability, merely by saying that since the words ‘best efforts, endeavor etc.’ were mentioned in the allotment letter, for delivery of possession of the plot, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the allotment letter/Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the plot or apartment is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/allotment letter, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the plots/unit(s) to the allottees/purchasers thereof. It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.