Chandigarh
StateCommission
CC/76/2017
Shri Tarsem Chand Singla - Complainant(s)
Versus
M/s Omaxe Chandigarh Extension Developers - Opp.Party(s)
Amitabh Suri, Adv.
31 Jul 2017
ORDER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Consumer Complaint | : | 76 of 2017 |
Date of Institution | : | 24.01.2017 |
Date of Decision | : | 31.07.2017 |
Shri Tarsem Chand Singla Son of Sh. Kundal Lal Singal resident of House No.133 Sector 10 Panchkula Haryana.
.........Complainant.
Versus
- M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. having Regd. Corp. office 10 L.S.C., Kalkaji, New Delhi through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
- M/s Omaxe Chandigarh Ext. Developers Pvt. Ltd. S.C.O.143-144 Sector 8-C, Chandigarh through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
- M/s Omaxe Chandigarh Extension, Site Address: In the revenue Estate of Villages Kansala, Parol, Kartarpur, Rani Majra Takipur Boothgarh, Dhode Majra Rasoolpurand Bhagat Majra In Mullanpur LPA (GMADA) District S.A.S. Nagar (Mullanpur) Punjab, through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
..........Opposite Parties.
Argued by:
Sh. Amitabh Suri, Advocate for the complainant.
Sh. Ashim Aggarwal, Advocate for the Opposite Parties.
Consumer Complaint | : | 77 of 2017 |
Date of Institution | : | 24.01.2017 |
Date of Decision | : | 31.07.2017 |
Shri Pankaj Goyal Son of Shri A.R. Goyal resident of House No.46, Sector-12 A, Panchkula, Haryana.
.........Complainant.
Versus
- M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. having Regd. Corp. office 10 L.S.C., Kalkaji, New Delhi through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
- M/s Omaxe Chandigarh Ext. Developers Pvt. Ltd. S.C.O.143-144 Sector 8-C, Chandigarh through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
- M/s Omaxe Chandigarh Extension, Site Address: In the revenue Estate of Villages Kansala, Parol, Kartarpur, Rani Majra Takipur Boothgarh, Dhode Majra Rasoolpurand Bhagat Majra In Mullanpur LPA (GMADA) District S.A.S. Nagar (Mullanpur) Punjab, through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
..........Opposite Parties.
Argued by:
Sh. Amitabh Suri, Advocate for the complainant.
Sh. Ashim Aggarwal, Advocate for the Opposite Parties.
Consumer Complaint | : | 78 of 2017 |
Date of Institution | : | 24.01.2017 |
Date of Decision | : | 31.07.2017 |
Smt. Usha Garg Wife of Shri S.K. Garg resident of Flat No.201 Daffodil Towers BollyWood Heights Peermuchalla Zirakpur Punjab.
.........Complainant.
Versus
- M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. having Regd. Corp. office 10 L.S.C., Kalkaji, New Delhi through its Directors, Partners, Chief Executive Officer, and Managing Director. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
- M/s Omaxe Chandigarh Ext. Developers Pvt. Ltd. S.C.O.143-144 Sector 8-C, Chandigarh through its Directors, Partners, Chief Executive Officer and Managing Director. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
- M/s Omaxe Chandigarh Extension, Site Address: In the revenue Estate of Villages Kansala, Parol, Kartarpur, Rani Majra Takipur Boothgarh, Dhode Majra Rasoolpurand Bhagat Majra In Mullanpur LPA (GMADA) District S.A.S. Nagar (Mullanpur) Punjab, through its Directors, Partners, Chief Executive Officer and Managing Director. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
..........Opposite Parties.
Argued by:
Sh. Amitabh Suri, Advocate for the complainant.
Sh. Ashim Aggarwal, Advocate for the Opposite Parties.
Consumer Complaint | : | 80 of 2017 |
Date of Institution | : | 24.01.2017 |
Date of Decision | : | 31.07.2017 |
Smt. Anjana Goyal Wife of Shri Rajesh Kumar Goyal Resident of House No.831 Sector 38/A, Chandigarh.
.........Complainant.
Versus
- M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. having Regd. Corp. office 10 L.S.C., Kalkaji, New Delhi through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
- M/s Omaxe Chandigarh Ext. Developers Pvt. Ltd. S.C.O.143-144 Sector 8-C, Chandigarh through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
- M/s Omaxe Chandigarh Extension, Site Address: In the revenue Estate of Villages Kansala, Parol, Kartarpur, Rani Majra Takipur Boothgarh, Dhode Majra Rasoolpurand Bhagat Majra In Mullanpur LPA (GMADA) District S.A.S. Nagar (Mullanpur) Punjab, through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
..........Opposite Parties.
Argued by:
Sh. Amitabh Suri, Advocate for the complainant.
Sh. Ashim Aggarwal, Advocate for the Opposite Parties.
Consumer Complaint | : | 81 of 2017 |
Date of Institution | : | 24.01.2017 |
Date of Decision | : | 31.07.2017 |
Shri A.R. Goyal Son of Late Shri Patram Dass resident of House No.46, Sector 12 A, Panchkula Haryana.
.........Complainant.
Versus
- M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. having Regd. Corp. office 10 L.S.C., Kalkaji, New Delhi through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
- M/s Omaxe Chandigarh Ext. Developers Pvt. Ltd. S.C.O.143-144 Sector 8-C, Chandigarh through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
- M/s Omaxe Chandigarh Extension, Site Address: In the revenue Estate of Villages Kansala, Parol, Kartarpur, Rani Majra Takipur Boothgarh, Dhode Majra Rasoolpurand Bhagat Majra In Mullanpur LPA (GMADA) District S.A.S. Nagar (Mullanpur) Punjab, through its Managing Director/Directors/Chief Executive Officer. (In Memo of Parties:- through its Directors, Partners, Chief Executive Officer, and Managing Director.)
..........Opposite Parties.
Argued by:
Sh. Amitabh Suri, Advocate for the complainant.
Sh. Ashim Aggarwal, Advocate for the Opposite Parties.
Complaints under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
PER DEV RAJ, MEMBER
By this order, we propose to dispose of the aforesaid five consumer complaints bearing Nos.76, 77, 78, 80 and 81 all of 2017. At the time of arguments on 29.06.2017, it was agreed between Counsel for the parties, that issues in law and facts involved in the above complaints and complaint bearing No.79 of 2017, by and large, are the same, and therefore, these complaints can be disposed of, by passing one consolidated order. However, on perusal of documents in CC/79/2017, it transpired that certain clarifications are required. Therefore, to have clarifications, complaint No.79 of 2017 has been listed for fresh hearing separately.
2. Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.76 of 2017, titled as ‘Tarsem Chand Singla Vs. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. & Ors.’.
3. In brief, the facts are that Opposite Parties advertised their project namely ‘Omaxe New Chandigarh’ situated at Mullanpur and invited applications for booking of residential plots with promise to handover the possession of the said plots within 18 months with maximum grace period of 6 months. It was stated that one Mrs. Sunita Sood booked a plot of 302.14 sq. yards vide OCE/633/T1 at total sale price of Rs.32,43,112.00 inclusive of all except Club Membership fee of Rs.50,000/- and refundable maintenance security of Rs.30,000/- by paying booking amount of Rs.2,70,000/- on 16.12.2010. It was further stated that the said plot was purchased by the complainant from Mrs. Sunita Sood by paying her paid up amount alongwith premium and the said booking was duly transferred in the name of complainant on 26.03.2011. It was further stated that Opposite Parties told the complainant that they had already procured all the project land and were having ownership in the project name and had all government and other authorities approvals, whereas Opposite Parties were neither having land ownership nor any approvals from the government/concerned authorities. It was further stated that Opposite Parties falsely demanded Rs.14,58,000/- as 40% of the Gross Basic Sale Price less the booking amount of payment, which was to be made on or before 30.06.2011. The allottee alongwith the complainant requested to rectify the demand, but the Opposite Parties instead of rectifying the mistake, intentionally and deliberately did not include the name of the complainant in the draw of plots, just to harass the complainant and to hide their delay in handing over possession of the said plot. The Opposite Parties started issuing false demands and threatened the complainant that in the event of non-payment, allotment would be cancelled. It was further stated that Opposite Parties issued allotment letter on 22.11.2012 to the complainant for provisional allotment of plot No.446 DG, measuring 252.84 sq. meter/302.84 sq. yards in Omaxe New Chandigarh at Mullanpur.
4. The complainant in para 8 of his complaint has given detail of payments made from time to time during the period 16.12.2010 to 16.06.2014, in the sum of Rs.31,02,976/- as per plan opted by him. It was further stated that and only balance amount of Rs.1,40,136.00 was to be paid at the time of possession.
5. It was further stated that the Opposite Parties wrongly and forcefully collected an amount of Rs.9,019/- vide receipt No.931797 dated 29.6.2013 on account of delayed interest, which was unjustified and needs to be refunded. It was further stated that in January 2013, the Opposite Parties sent false agreement showing wrong GBSP and false balance to the complainant. The complainant approached the Opposite Parties who accepted its mistake, reconciled the matter after rectifying the discrepancy and issued No Dues Certificate on 08.07.2013. It was further stated that the complainant returned the false agreement to the Opposite Parties for rectification as per agreed terms and conditions between the complainant and Opposite Parties, but the Opposite Parties being in dominant position, have already received more than 90% payment; again made one sided agreement with new/manipulated dates as well as also manipulated the possession dates as mentioned in the rectified agreement. It was further stated that Opposite Parties fictitiously and falsely added Rs.2,10,883.98 in their latest account statement dated 16.08.2016 and also falsely showed current pending dues of Rs.37,150.39, when Mr. Ashish Garg, Commercial Manager, Omaxe Pvt. Ltd. had already issued No Dues Certificate on 08.07.2013. It was further stated that possession was to be delivered by the Opposite Parties to the complainant within 18 months + 6 months grace period, which comes out to be 2 years maximum from the date of booking i.e.16.12.2010 and the due date being 15.05.2012, there was delay of more than 4 years and 7 months as the grace period is given only if the possession would have been delivered within grace period. It was further stated that as per clause 14 of the agreement, it will attract penalty of interest @ 24% p.a. on delayed payment and therefore on the principle of natural justice and equity, in case of delay in giving possession, the Opposite Parties should be penalized with 24% interest on the amount deposited, by the complainant. It was further stated that by not delivering the possession of the plot by 15.05.2012, Opposite Parties committed the breach of agreement, deficiency in services indulging in monopolistic trade practice, unfair trade practice and malafide trade, on account of which complainant suffered huge monetary losses as well as continuous physical and mental torture. It was further stated that there being substantial difference between the booking date and date of agreement, the booking date would be considered for the purpose of calculating due date of possession.
6. Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties, to hand over physical possession of the plot with complete amenities/development; withdraw additional unjustified demand of Rs.2,10,883.98, being beyond agreed terms and conditions of allotment; rectify the account statements of the complainant; refund Rs.9,019.00 alongwith 24% interest, wrongly collected as delayed interest; pay interest @ 24% p.a. from the date of collecting each payment till handing over possession of the plot; pay compensation of Rs.10.00 lacs for continuous harassment, mental agony & irony as complainant spent hard earned money and also pay Rs.50,000/- as litigation cost.
7. Notice in this complaint was issued to the Opposite Parties on 27.01.2017.
8. The Opposite Parties, filed their joint written version, raising many preliminary objections like as per Clause 44 (c) of the Allotment Letter/Agreement, this Commission has no jurisdiction, to entertain and decide disputes between the parties, because as per above said provision, the matter needs to be referred to an arbitrator for adjudication. It was averred in the joint written reply that the complainant being investor, did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, as, he 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 jurisdiction of this Commission was also challenged, by stating that no cause of action, whatsoever, has accrued within the territorial jurisdiction of this Commission as property is located in Punjab and registered office of the Opposite Parties is at New Delhi. It was further stated that as per Clause 44 (c) of the Allotment Letter/Agreement, the Courts at Punjab and Delhi, shall have territorial Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred.
9. Factual matrix of the case was not controverted. It is stated that originally Mrs. Sunita Sood filed an application for booking of plot in the project, the total price whereof was Rs.35,58,675.84 plus amounts towards club charges, maintenance security and other charges as described in the Agreement. It was further stated that the complainant purchased the allotment rights from the original buyer after being satisfied with all terms and conditions and of his own free will. It was further stated that all payments were made in accordance with the terms and conditions agreed to between the parties. It was further stated that till date the complainant has made payment of Rs.30,84,957/-. It was denied that the balance payable by the complainant is Rs.1,40,136/-. It was further stated that Rs.3,73,718.84 is payable at the time of possession, which includes Rs.1,62,834.86 towards basic price and Rs.2,10,883.98 towards other charges. It was denied that payment was to be made as per progress/development of the site. It was further stated that the complainant opted for Time Linked Payment Plan as is evident from Payment Plan attached with the Buyer’s Agreement. It was denied that the payments were made in time by the complainant or that agreement was executed late by the Opposite Parties. It was stated that the Agreement was sent to the complainant for signing on time. It was further stated that the complainant was a defaulter and never made payments on time and had to be sent various reminders letters/notices. It was further stated that the complainant deposited the amount of Rs.9,019/- without protest and hence, his grievance at this stage is not only baseless but also time barred.
10. It was denied that any no dues certificate was issued in 2013 by the Opposite Parties. It was denied that possession was to be handed over before 07.05.2012. It was stated that the agreement was signed on 30.10.2013 and as per Clause 24 (a) of the Allotment Letter/Agreement, possession date was to be computed from the date of signing of agreement. It was further stated that the Opposite Parties were to complete the development/construction of the unit, in question, within a maximum period of 18 months from the date of signing of the allotment letter, with extended period of six months. It was further stated that the complainant signed the agreement without coercion or protest after understanding the terms and conditions thereof. It was further stated that the complainant himself delayed various payments, which also led to delay in development and hence, he cannot be allowed to take advantage of his own wrongs. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
11. The Opposite Parties also moved miscellaneous applications under Section 8 of Arbitration and Conciliation Act, 1996 in the following consumer complaints, for referring the matter to the sole arbitration:-
Sr. No. | Complaint Case No. | Miscellaneous Application No.
|
1. | CC/76/2017 | 192/2017 |
2. | CC/77/2017 | 193/2017 |
3. | CC/78/2017 | 458/2017 |
4. | CC/80/2017 | 456/2017 |
5. | CC/81/2017 | 457/2017 |
The aforesaid applications were disposed of by this Commission by holding that the applicability of the arbitration process would be seen at the time of final arguments in the main case.
12. In the rejoinder filed, the complainant reiterated all the averments, contained in the complaint and controverted those, contained in written version of the opposite parties.
13. The contesting parties led evidence in support of their cases.
14. Counsel for the contesting parties raised arguments, in tune with facts narrated above.
15. At the time of arguments, the Counsel for the Opposite Parties by moving a miscellaneous application placed on record offer of possession letter dated 15.06.2017 alongwith statement of account and proof of dispatch Exhibit OP/3 (colly), which was taken on record.
16. We have heard Counsel for the parties and have gone through the evidence and record of the cases, very carefully.
17. It is evident on record that initially, one Mrs. Sunita Sood had applied for the plot, in question. She vide her application (Endst. Form F-2) dated 01.03.2011 (Annexure – 10) requested the Opposite Parties to assign her rights and interest whatsoever pertaining to the said plot including payments made in that regard in favour of Sh. Tarsem Chand Singla (complainant). From the payment particulars mentioned in the aforesaid application, it transpires that a sum of Rs.2,70,000/- had been paid on 15.12.2010. the Opposite Parties vide letter dated 25.05.2011 (Annexure – 9) informed the complainant that in response to expression of interest for registration for allotment of the plot, size approximately 300 sq. yards/250.84 sq. mtrs., they were starting the process of provisional allotment of plots and requested him to make payment of 40% of the gross basic sale price less the booking amount, amounting to Rs.14,58,000/- on or before 30.06.2011. Thereafter, vide letter dated 29.07.2011 (Annexure-8), the complainant was informed that the basic sale price of 300 sq. yards plot was Rs.39,50,000/-. The complainant did not make payment in the sum of Rs.14,58,000/- as per demand raised by the Opposite Parties within the period stipulated in the demand letter. As per details given by the complainant himself, he only deposited a sum of Rs.5 Lacs on 29.07.2011. It means that up to 29.07.2011, the complainant had made payment only in the sum of Rs.7.70 Lacs. Thereafter, the payments were made as under:-
S.No. | Dated
| Receipt No. | Amount | Remarks
|
1. | 29.4.2013 | 898099 | 300000/- |
|
2. | 29.6.2013 | 931794 | 1184178 |
|
3. | 29.6.2013 | 931797 | 9019/- | Delay Interest |
4. | 18.9.2013 | 966624 | 365312/- |
|
5. | 21.12.2013 | 1024231 | 316311/- |
|
6. | 16.6.2014 | 1064215 | 158156/- |
|
18. The allotment letter was issued on 30.10.2013. No doubt there is delay in issuing allotment letter but the position stated above and the details of payments tabulated above, clearly reveal that baring a sum of Rs.7.70 Lacs, the payment(s) on 29.04.2013, 29.06.2013 and 18.09.2013 were made before six, four and one month from the issuance/execution of the allotment letter. Though substantial amount was paid by the complainant before execution of allotment letter but major part of the payment was made only one to six months before issuance of allotment letter dated 30.10.2013, as indicated above.
19. No doubt, the complainant has averred that payments were made in time and still the Opposite Parties illegally charged interest in the sum of Rs.9,019/-. As already stated above, the payment of Rs.14,58,000/-, which was to be deposited by 30.06.2011 was deposited much later in July 2011 and April/June 2013. When there is delay in remitting the installments, the Opposite Parties are entitled to levy interest thereupon and the complainant cannot be heard to say that interest was charged from him wrongly and forcibly. As per position stated by the complainant himself, he deposited the said amount of interest on 29.06.2013. There is nothing on record that he deposited the amount of interest under protest. The Opposite Parties in Para 10 of the written statement have, therefore, rightly stated that the grievance to this effect is not only baseless but is also time barred.
20. Before making any reference to the merits of the case, we would like to decide the objection raised by the opposite parties that this Commission has no territorial jurisdiction to entertain and decide the complaint or not.
21. 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 him. In the instant case, it is evident from the Allotment Letter/Agreement, containing detailed terms and conditions, that the same was executed between the parties at Chandigarh, as the same bears the stamp of Chandigarh Office of opposite parties. Letter dated 29.07.2011 (Annexure 9) was also issued from Chandigarh office of the Opposite Parties at SCO 143-144, First Floor, Sector 8-C, Madhya Marg, Chandigarh. 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 parties in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
22. No doubt, in the written version, an objection was also taken by the opposite parties that as per Clause 44 (c) of the Allotment Letter/Agreement, the Courts at Delhi and Punjab, shall have Jurisdiction, to entertain and adjudicate the complaint, 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.
23. 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.
24. 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 him, to file the complaint. The submission of Counsel for the opposite parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
25. The next question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that the mere objection of the opposite parties that the complainant is an investor, as he 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.
26. Even otherwise, the mere fact that the plot purchased by the complainant was a residential property, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is a property dealer, and deal in the sale and purchase of property. Furthermore, 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. Not only as above, recently 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.”
Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Parties/builder, mere bald assertion to that effect, cannot be taken into consideration. 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 Opposite Parties/builder, therefore, being devoid of merit, is rejected.
27. Counsel for the Opposite Parties also argued that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to arbitration for adjudication. We are not going to agree with the argument raised. This Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, noted that litigation in the Consumer Fora is cost effective. The complaint in the State Commission can be filed by making payment between Rs.2,000/- to Rs.4,000/- only. Whereas, as per principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of arbitrator’s fee. As per mandate of 1986 Act, a complaint is proposed to be decided within three months from the date of service of the other party. On the other hand, it is admissible to an Arbitrator to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it was observed that if the matter is referred to an Arbitrator, it would defeat the very purpose of the provisions of 1986 Act. Paras 26, 33 and 34 of the said order, inter-alia, being relevant, are extracted hereunder:-
“26. To decide above said question, it is necessary to reproduce the provisions of Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;
“3. Act not in derogation of any other law.—
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”
33. The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the plot, in question, in a developed project. As per ratio of the judgments in the case of 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), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.
34. Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-
“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”
Same is the ratio of recent judgment passed by Hon’ble National Commission (three Judges Bench) on 13.07.2017 in case titled ‘Aftab Singh Vs. Emaar MGF Land Ltd. & Anr.’, in Consumer Complaint No.701 of 2015, with IA/247/2016, IA/505/2017, IA/7294/2015, IA/9570/2015 & IA/11813/2016.
In view of the above, the plea taken by the Opposite Parties, that in the face of existence of arbitration clause in the Agreement, 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, being devoid of merit, is rejected.
28. The next 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. As per Clause 24(a) of the allotment letter, the Opposite Parties were to complete the construction/development of the plot/project within 18 months or within an extended period of six months from the date of signing of the allotment letter, subject to force majeure conditions. In the instant case, the complainant has sought possession of the plot in question. Since Allotment Letter/Agreement was executed between the parties on 30.10.2013, therefore, possession of the said plot was to be delivered to the complainant, on or before 29.10.2015. However, possession of the plot, in question, has been offered to the complainant, during pendency of the complaint on 15.06.2017. On 29.06.2017, on the date of final arguments, the Opposite Parties moved an application for placing on record copy of possession letter as Exhibit OP/3 (colly). Alongwith the possession letter, the Opposite Parties have also annexed statement of account (Annexure –A) dated 15.06.2017, wherein against the total amount payable i.e. Rs.34,71,058.98, a sum of Rs.30,84,957.00 is shown to be received and the balance due amount payable by the complainant is shown as Rs.3,87,801.98, which includes Rs.1,700/- towards Service Tax. It was also specified in the aforesaid letter that the moment full and final payment was received, physical possession would be handed over. The demand raised vide the aforesaid letter was to the following effect:-
PARTICULARS | AMOUNT (In Rs.) |
A) (I) Net Basic Sale Price | 31,67,792.92 |
(II) ADDITIONAL |
|
| 50,000.00 |
| 30,000.00 |
(III) Other Cost |
|
| 80,000.00 |
| 62,240.84 |
| 30,093.14 |
| 26,550.00 |
| 12,000.00 |
Total (I+II+III) | 34,58,675.98 |
B) Interest on account of delayed remittance | 12,383.00 |
Grand Total (A+B) | 34,71,058.98 |
C) Received Amount | 30,84,957.00 |
Balance Due (A+B-C) | 3,86,101.98 |
Service Tax | 1,700.00 |
GRAND TOTAL | 3,87,801.98 |
29. The complainant in his complaint has averred that the Opposite Parties facetiously and falsely added Rs.2,10,883.98 in their latest account statement dated 16.08.2016 and also showed current pending dues of Rs.37,150.39. It is also stated that Sh. Ashish Garg, Commercial Manager, Omaxe Pvt. Ltd. on 08.07.2013 had already issued No Due Certificate to the complainant. No document that the Opposite Parties ever raised demand in the sum of Rs.2,10,883.98 has been placed on record. Also the alleged No Due Certificate was not placed on record. The Opposite Parties in para 6 of their written statement have denied that any No Due Certificate was issued in 2013. It may also be stated here that as per Annexure-B (Part II) & (Part-III), annexed with the allotment letter, the total price of the plot, in question, is Rs.32,43,112/-. In Annexure –B (Part-II), the following stipulation appears:-
“Stamp duty, Registration Charges, Cost towards Individual Electricity Meter, External Electrification, Water & Sewerage, External Development Charges & infrastructure Development Charges (any increase), car parking (if any), Club (if any), any other cost are not included in price and shall payable by the Buyer(s) on demand by the Company on offer of possession of the said unit or as and when demanded by concerned Competent Authority (in case of EDC & IDC, Lease Rent, Other Govt. Levy, imposition etc.).”
Clearly the averments made by the complainant are not supported by any cogent evidence. The Opposite Parties have raised demand of Rs.3,87,801.98 vide statement of account dated 15.06.2017 against the complainant. In view of aforesaid stipulation, the contention of the complainant that the Opposite Parties illegally raised the aforesaid demand qua additional cost, is not tenable being devoid of merit and the complainant is liable to pay the demand raised vide offer of possession letter dated 15.06.2017.
30. The contents of letter dated 15.06.2017 clearly reveal that the complainant has already made payment in the sum of Rs.30,84,957.00. However, possession was not delivered to the complainant as per period stipulated in clause 24(a) of the allotment letter/agreement and even after the extended period of six months, as per terms of the allotment letter. Thus, there has been delay in offering possession, which was due on 29.10.2015 (computing 18 months + 6 months from 30.10.2013 when the Opposite Parties issued allotment letter). In view of ratio of judgment of this Commission in Complaint Case No.311 of 2015 titled as ‘Shellender Singh Vs. M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd.’, the Opposite Parties are not entitled to any benefit of time on account of Sundays, holidays etc. Non-delivery of possession of the plot, in question, by the stipulated date, is a material violation of the terms and conditions of the Allotment Letter/Agreement, on the part of the opposite parties. The aforesaid delay is clearly attributable to the Opposite Parties.
31. The question, which now falls for consideration, is, whether the complainant is entitled to interest for delayed possession. The hard earned money of the complainant remained with the Opposite Parties and besides inordinate delay in executing allotment letter, possession was delayed even beyond the period stipulated in the allotment letter. It is evident from record that the complainant had made payments in the sum of Rs.26.28 lacs when allotment letter was issued on 30.10.2013. Computing 18 months plus 6 months grace period = 24 months in terms of Clause 24(a) of the allotment, the complainant is entitled to interest for the period from 30.10.2015 till handing over of actual, complete and legal physical possession of the plot, in question, @10% per annum. Since possession has been offered on 15.06.2017, after 15 days for making payment plus one month as grace period i.e. up to 31.07.2017, the complainant shall be entitled to compensation by way of interest @10% p.a. (simple). If despite making payment by the complainant as per demand raised in the letter of possession, which has been held to be justified, if possession is not delivered, within 30 days, for delay beyond 30 days from the date payment is made, the complainant shall be further entitled to compensation @10% interest till possession is actually delivered. [In the event of delayed payment due or payable by the allottee, in terms of Clause 14 of the allotment letter, the Opposite Parties charge penal interest @18% per annum on the amount outstanding up-to one month delay from the due date of outstanding and @24% per annum thereafter on all outstanding dues from their respective due dates.]
32. The next question, which needs determination, is with regard to grievance of the complainant qua delay in execution of allotment letter/agreement and as to whether complainant is entitled to compensation for such delay. The complainant in Para 9 of his complaint has specifically stated that the Opposite Parties took approximately two years to execute agreement after continuous pursuance of the complainant since 26.03.2011. It is on record that the plot was booked by the original allottee in December, 2010 who assigned her rights in the plot, in question, on 01.03.2011 in favour of the complainant vide application form (Annexure 10) and invitation for allotment of residential plot was given to him by the Opposite Parties vide letter dated 25.05.2011 (Annexure 9). The allotment letter for residential plot in township project “Omaxe Chandigarh Extn.” was executed on 30.10.2013 (Annexure-11). Thus, the Allotment/Agreement was got signed/issued after receipt of amount of Rs.26.50 lacs. However, substantial amount was paid only six, four and one month before execution of allotment letter on 30.10.2013. By doing so, the Opposite Parties have indulged into unfair trade practice, for which the complainant is entitled to reasonable compensation, as per prayer made at the time of arguments. Delay in execution of allotment letter/agreement amounts to adoption of unfair trade practice, for which, the complainant needs to be compensated.
33. The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment, and injury caused to him, by not delivering physical possession of the unit to him, by the Opposite Parties, by 29.10.2015. The complainant purchased the unit, with the hope to have a roof over his head alongwith with his family members, but his hopes were dashed to the ground. The possession of unit, in question, has been offered to the complainant, during pendency of the complaint on 15.06.2017. The complainant, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. The compensation in the sum of Rs.10 Lacs claimed by the complainant is on the higher side. Consolidated compensation to the tune of Rs.2.50 lacs, on this count as also for delay in execution of allotment letter/agreement, if granted, would meet the ends of justice and will definitely put a naught on the Opposite Parties, for doing so, in future. The complainant is, thus, held entitled to consolidated compensation of Rs.2 Lacs.
34. Similarly, in following four complaints bearing No.77, 78, 80 and 81 all of 2017, particulars of which are indicated in Table-I below, the possession of the unit(s) has not been offered by the Opposite Parties on the due dates indicated against the respective complaints:-
TABLE-I
Sr. No. | Complaint No. | Date of Booking | Date of Agreement/ Allotment. | Due date for possession after 18 + 6 = 24 months | Date on which possession offered | Amount paid till filing of complaint |
A. | B. | C. | C. | D. | E. |
|
1. | 77/2017 | 08.12.2010 | 24.05.2014 | 23.05.2016 | Not offered | Rs.33,73,461/- |
2. | 78/2017 | 11.12.2010 | 24.05.2014 | 23.05.2016 | Not offered | Rs.32,36,285/- |
3. | 80/2017 | 04.01.2011 | 19.03.2013 | 18.03.2015 | Not offered | Rs.26,21,752/- |
4. | 81/2017 | 15.12.2010 | 24.05.2014 | 23.05.2016 | Not offered | Rs.31,88,219/- |
In above complaint cases bearing Nos.77, 78, 80 & 81 all of 2017, wherein possession of the plot(s), in question, has not been offered to the complainant(s) by the Opposite Parties, the complainants are entitled to interest @10% p.a. (simple) from the due date for handing over of possession till handing over of actual, complete and physical possession of the plot(s) in question.
35. In aforesaid four complaints, the complainant(s) are also entitled to same amount of compensation for delay in execution of agreement, adoption of unfair trade practice and deficiency in rendering service in the sum of Rs.2 Lacs, as has been awarded in complaint case bearing No.76 of 2017.
36. No other point, was urged, by the contesting parties, in all the complaints.
37. For the reasons recorded above, the complaints bearing No.76, 77, 78, 80 and 81 all of 2017 are partly accepted, with costs.
Complaint Cases No.76 of 2017
In this case, possession of the plot, in question, stood offered to the complainant on 15.06.2017.
The opposite parties/builder are, jointly and severally, directed as under:-
- To hand over the physical possession of the plot, in question, complete in all respects, within a period of one month, to the complainant, from the date of receipt of a certified copy of this order, on receipt of payment from the complainant as per demand raised in possession letter dated 15.06.2017.
- The Opposite Parties shall execute the sale/conveyance deed and get it registered in the name of the complainant after handing over the actual physical possession of plot, in question, as per direction in Clause (i), above, within a period of two months thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainant.
- To pay compensation, by way of interest @10% p.a., on the deposited amount, to the complainant, with effect from 30.10.2015 up-to 45 days from the date of offer of possession i.e. up-to 31.07.2017, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @13% p.a., instead of 10% p.a., from the date of default, till realization.
For failure of Opposite Parties to deliver possession within 30 days from the date of making payment by the complainant, for such delay, beyond 30 days, compensation by way of interest @10% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @13% p.a. instead of 10% p.a. till payment is made.
- The Opposite Parties are further directed to pay Rs.2,00,000/- (Rupees Two Lacs only), to the complainant as consolidated compensation for delay in execution of agreement, mental agony and physical harassment, adopting unfair trade practice & deficiency in rendering service, and Rs.35,000/- as cost of litigation, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the same shall carry interest @10% per annum from the date of filing the complaint till actual payment.
Complaint Cases No.77, 78, 80 and 81 both of 2017
In these cases, possession of the unit(s), in question, has not been offered by the Opposite Parties.
The complainant(s) shall deposit the payable amount(s), with the Opposite Parties within a maximum period of 45 days from the date of receipt of possession letter and demand raised therein.
The opposite parties/builder, in each of these cases, are jointly and severally directed as under:-
- To hand over the physical possession of the plot(s), in question, complete in all respects, within a period of two months, to the complainant(s), from the date of receipt of a certified copy of this order.
|
|
38. Certified copies of this order be placed in connected complaints bearing nos.77, 78, 80 and 81 all of 2017.
39. Certified Copies of this order be sent to the parties, free of charge.
40. The file be consigned to Record Room, after completion.
Pronounced.
31.07.2017.
[JUSTICE JASBIR SINGH (RETD.)]
PRESIDENT
[DEV RAJ]
MEMBER
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