Chandigarh

StateCommission

CC/317/2016

Amit Goel - Complainant(s)

Versus

M/s Puma Realtors Private Limited - Opp.Party(s)

Savinder Singh Gill, Adv.

01 Nov 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	317 of 2016
Date of Institution	:	04.07.2016
Date of Decision	:	01.11.2016

 

Amit Goel s/o Sh. Dhan Raj r/o H.No.2786, Old Grain Market, Nissing, District Karnal, Haryana – 132024. 

……Complainant

Versus

M/s Puma Realtors Private Limited, SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh.

            ....Opposite Party.

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

 

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

MR. DEV RAJ, MEMBER.

               MRS. PADMA PANDEY, MEMBER.

 

Argued by:

 

Sh. Savinder Singh Gill, Advocate for the complainant.

Sh. Ramnik Gupta, Advocate for the opposite party.

 

PER DEV RAJ, MEMBER

             The facts, in brief, are that the complainant was willing to own a residential plot for his family and personal use. As such, he alongwith his friend, Shri Manoj Goyal jointly applied for a plot in the project of the Opposite Party, namely ‘IREO Hamlet’ in Sector 98, S.A.S. Nagar, Mohali on 20.02.2011. Plot No.62 measuring 273.79 sq. yards was allotted on 29.04.2011 vide allotment letter (Annexure C-2). The complainant paid an amount of Rs.6,50,000/- and Rs.2,94,576/- on 21.02.2011 and 28.07.2011 respectively. A Plot Buyer’s Agreement was executed between the parties on 24.08.2011 at Chandigarh. After execution of the Agreement, the complainant paid an amount of Rs.10,31,853/- each on 03.01.2012 and 20.03.2014 respectively. The friend of the complainant transferred his share to the complainant on 15.02.2014 vide Agreement to Sell (Annexure C-1). As per Clause 11 of the Agreement, Possession of the plot, in question, was to be delivered within a period of 24 months plus grace period of 6 months plus additional 12 months extended grace period, i.e. 42 months from the date of execution of the Agreement. The initial Time Linked Payment Plan was later on changed to Development Linked Payment Plan. The Opposite Party sent a letter of offer of possession, which the complainant received on 19.11.2015. It was further stated that letter  was just a mere possession as the site of the project is still not complete as of date. The complainant also  raised two loans of Rs.39,10,549/- and Rs.10 Lacs towards the said plot. It was further stated that after receiving full consideration towards the plot, the Opposite Party till date has not given possession to the complainant. It was further stated that there was no development and even the roads dividing between Sectors 97-98 and approach road to reach the site were not there.  It was further stated that the complainant visited the site in April, 2016 and still there was no development. It was further stated that the complainant requested the Opposite Party to provide necessary approvals/permission, regarding basic amenities/PHE services, obtained from GMADA and PSPCL but it did not bother to reply. It was further stated that the Opposite Party has not obtained the completion certificate till date.  

3.          It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Party, to refund the amount of Rs.67,42,107/-, alongwith interest @18% p.a., from the respective dates of deposits till realization; pay compensation, to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.1,00,000/-.

4.            The Opposite Party, in its written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration clause No.33 in the Plot Buyer’s Agreement dated 24.08.2011; that present complaint related to the enforcement of agreement to sell/purchase of a residential plot i.e. an immoveable property and hence was not covered under the Act; that the complainant did not hire any services of the Opposite Party, as the parties did not enter into any contract for hiring the services and the contract was only to sell a piece of land to the complainant; that the complainant did not book the plot for his personal use but for investment/commercial purpose and that the allegations in the complaint being of contractual nature, were only triable by the Civil Court. It was further pleaded that jurisdiction issues be decided as preliminary issues and only thereafter, decision be taken on merits. Apart from above objections, a specific objection with regard to the territorial jurisdiction of the Commission on account of existence of Clause 35 in the Agreement has been raised stating that the Courts at Mohali and the Punjab & Haryana High Court at Chandigarh alone had the jurisdiction.

5.          On merits, it is stated that it was nowhere agreed that the total cost of the plot would be Rs.62,97,170/-, which was only the basic sale price whereas the actual consideration was Rs.67,42,106.13 including EDC and IFMS charges. The execution of the Plot Buyer’s Agreement has been admitted by the Opposite Party. It was further stated that the payments of Rs.10,31,854/- and Rs.10,31,853/- were made with delay of 291 days and 353 days respectively. It was further stated that vide email dated 03.12.2013 (Annexure OP-40), more time was sought by the complainant to make the payment due on account of marriage of his sister. It was further stated that rather going for cancellation due to delayed payment of installments, the Opposite Party accepted the payments and issued notice of possession letter dated 23.06.2015. It was further stated that, on the contrary, despite recording his satisfaction over the development, the complainant desired to get the conveyance deed of the plot, in question, registered at the expense of the Opposite Party but he, in the first week of July 2016, refused to get the conveyance deed executed in his name. It was further stated that neither the complainant can be allowed to retrace his steps back nor he can be allowed to raise any objection against notice of possession or against the development at the site. It was denied that project is still not complete. It was further stated that the compensation, as agreed in the Agreement, has already been accepted by way of adjustment in the last payment by the complainant and, therefore, question of date of notice of possession or delayed offer of possession does not arise. It was further stated that on commencement of the development on 01.05.2013, the development at the site remained in progress continuously and at a good pace and therefore, the allegation that there was no development, when the complainant visited the site in April 2016 was totally false and incorrect and rather the complainant vide his letter dated 23.12.2015 had already got recorded his satisfaction over the development of the site.

6.          It was further stated that PSPCL approved the electricity load to the project vide letter dated 08.07.2015 and the Chief Electrical Inspector to the Government of Punjab granted approval for commissioning of electrical installations on 07.08.2015. It was further stated that the project is approved under the provisions of Punjab State Industrial Policy 2003 and Government of Punjab in furtherance of Letter of Intent dated 30.09.2005 vide its Notification dated 14.08.2008 had exempted the Opposite Party from the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short ‘PAPRA 1995) except Section 32 thereof. It was further stated that the Opposite Party has duly complied with the terms and conditions of the same and as such, it was/is under no obligation to obtain any completion/partial completion from the Authority under Section 14 of PAPRA 1995. It was further stated that Opposite Party has already installed the STP and the same is fully functional at the site, as is clear from the report of the Local Commissioner. It was further stated that electricity line has already been provided by PSCPL to the Opposite Party at the site for construction purposes. It was further stated that the development work, as per Clause 21.2 of the Agreement at the site was complete. It was further stated that the main entrance of the project opens directly on the 200 ft. wide road and hence, all the internal roads of the project shall automatically stand connected to the Sector road. It was further stated that the sector roads were to be developed by the State Authorities in terms of Clause 21 of the Agreement. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

7.         The complainant filed rejoinder, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.

8.          The parties led evidence, in support of he cases.

9.          We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 

10.        It is evident, on record, that vide allotment letter dated 29.04.2011 (Annexure C-2), the complainant was allotted Plot No.62 in the residential project “IREO Hamlet” admeasuring 273.79 sq. yard, Sector 98, SAS Nagar, Mohali, the basic sale price whereof was Rs.23,000/- per sq. yard besides External Development Charges (EDC) @Rs.1,275.10 per sq. yard and IFMS charges @Rs.350/- per sq. yard. Admittedly, Plot Buyer’s Agreement was executed between the parties on 24.08.2011 (Annexure C-3). The payment against the aforesaid plot was to be regulated as per payment plan, Annexure I (at Page 53 of the file). Against the total price of Rs.67,42,106.13P of the plot including External Development Charges and IFMS Charges, the complainant made 100% payment in the sum of Rs.67,42,107/-. As admitted by the Opposite Party, the development work started at the site only on 01.05.2013, almost two years after the execution of Plot Buyer’s Agreement dated 24.08.2011. The complainant paid an amount of Rs.9,88,215/- to the other co-allottee on 15.02.2014 when he purchased rights of the co-allottee, namely, Manoj Goyal. The possession of the plot, in question, was offered to the complainant vide letter dated 23.06.2015. the said letter was posted on 06.07.2015 as is evident from postal receipt (Annexure OP-41). Undisputedly, the said letter was received personally by the complainant on 19.11.2015 (Annexure OP-42).

11.           The first question, that falls for consideration, is, as to whether, 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. This question has already been elaborately dealt with by this Commission in Consumer Complaint No.213 of 2016 titled ‘Gobind Paul Vs. Emaar MGF Land Limited & Another’ decided on 16.08.2016. Paras 8 to 15 of the said order, inter-alia, being relevant, are extracted hereunder:-

                    “8……….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.”

                    It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

9.                 Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of 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) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

10.               In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

 

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

 

11.               Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

12.               Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis-à-vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

13.               We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant have spent his life savings to get a unit, for their residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take up-to 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 can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

14.               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 unit, in the said project, launched by the opposite parties. However, his hopes were shattered, when despite making substantial payment of the sale consideration, they failed to get possession of the unit, 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.

15.               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.””

             In view of the above, the objection raised by Counsel for the Opposite Party 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.

12.        The next question that falls for consideration, is, as to whether, the plot, in question, was purchased by the complainant, for his personal use, or he was speculator, as alleged by the opposite party. No doubt, to defeat claim of the complainant, an objection was raised by the Opposite Party, to the effect that the complainant, being an investor, had purchased the plot, in question, for earning profits, as and when there is escalation in the prices of real estate, as such, he would not fall within the definition of consumer, as defined under Section 2(1)(d) of 1986 Act. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. On the other hand, it has been clearly averred by the complainant, in Para 1 of his complaint that the plot, in question, was purchased by him, for his family and personal use. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Commission 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. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only 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 house 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.”

 

The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.  

13.        Another objection raised by Counsel for the Opposite Party was that since the complainant did not buy goods and did not hire any services, and was seeking enforcement of the Agreement in respect of immovable property, therefore, only a Civil Court can decide the complaint, and consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the Opposite Party, for purchasing the plot, in question, in the manner, referred to above. According to Clause 11.1 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Party, it was to deliver physical possession of the plot, within a period of 30 months, from the date of execution of the same (Agreement), with complete basic amenities, as provided in Clause 21.2. Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

 

 

 

14.        From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he falls within the definition of consumer, as stated above. In this view of the matter, the objection of the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.

15.        The next objection raised by the Opposite Party is that existence of Clause 35 in the Plot Buyer’s Agreement, bars the territorial jurisdiction of this Commission, to entertain and try the complaint. It may be stated here that this issue has already been dealt with in detail by this Commission in the case of ‘Jarnail Singh Sandhu Vs. M/s Puma Realtors Pvt. Ltd. & Anr.’, Consumer Complaint No.173 of 2016 decided on 02.09.2016. Para 19 of the said judgment, being relevant is, inter-alia, extracted hereunder:-

“19……..It may be stated here that according to Section 17 of the Act, a consumer complaint could 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, that receipt dated 12.07.2011 in the sum of Rs.9,37,500/- (Annexure C-I), provisional allotment letter dated 04.08.2011 (Annexure  C-II), receipt dated 15.10.2011 in the sum of Rs.10,53,130.58 (Annexure C-III), letter dated 26.09.2011 regarding offer for change of payment plan (Annexure C-IV) and two receipts dated 13.08.2013 (Annexure C-V colly.) were issued by the Chandigarh office of the Opposite Parties i.e. Puma Realtors Private Limited, S.C.O. no.6-7-8, Second Floor, Sector 9-D, Chandigarh. Since a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. A similar question arose, before the National Commission, in Smt. Shanti Vs. M/s. Ansal Housing & Construction Ltd., First Appeal No.142 of 2001 decided by the National Commission on 11.04.2002, wherein the National Commission held as under:-

“This appeal is directed  against  the  order dated  9.4.2001  of the Delhi Consumer Disputes Redressal Commission  non suiting the appellant on a preliminary issue holding that  Delhi State Consumer Dispute  Redressal Commission will have no jurisdiction  to entertain the complaint.

    What led the State Commission to pass this order was clause 24 of the agreement for allotment of residential flat to the appellant.   It is stated that ‘any dispute arising out of this agreement shall be subject to jurisdiction of Lucknow Courts only”.  State Commission   also   relied   on   the   decision of   the Supreme Court in the case of  A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A.P. Agencies, Salem - AIR 1989 SC 1239 to hold that only the courts in Lucknow  would have jurisdiction.

          We do not think State Commission examined the whole issue in a pragmatic manner.  Complainant is a consumer and raised a consumer dispute under the Consumer protection Act, 1986. To help  and assist a consumer   and to achieve the objects of the Act, Section 11 of the Act was amended.   This  Section relates to  the jurisdiction of the District Forum.  Now  a complaint could be filed against the opposite party  not only at the place where  he actually or voluntarily reside or personally works for  gain  but also where he carries on business or has branch office.  The words “carries  on business or has a branch office” were added by the amending Act of 1993.   Jurisdiction of a District Forum is exclusively covered  by Section 11 of the Act.  For this we do not have to refer any provisions of the Code of Civil Procedure. Any provision  of the agreement which oust the jurisdiction of a District Forum   even from a place where the opposite  party has a branch office  cannot  be held to be  valid or binding.  Moreover, the clause  on which the complainant was non-suited   refers to the jurisdiction  of Lucknow Courts.  District Forum is  not a court as understood in the Code of Civil Procedure.   That clause in the agreement  will have no  meaning as far as jurisdiction of the District Forum where the opposite party has even branch office is concerned. 

          National Commission has already taken a view on this aspect of the matter.  Accordingly the impugned order of the State Commission is set aside and the matter is remanded to the State Commission to decide the complaint in accordance with law. Party shall appear before the State Commission on 8.7.2002 for further directions.  This appeal is disposed of as above.”

It may be stated here that, for determining the territorial jurisdiction, to entertain and decide the complaint, the  Consumer Foras are bound by  the provisions of Section 11 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, as the Foras are not  the Courts.  It was further held, in the said case, that there is a difference between Section 11 of the Act, and the provisions of  Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. Further, 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) CPJ31 (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 of 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 of 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 Section 11 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case.  At the same time, it is also held in the face of case Ethiopian Airlines Vs Ganesh Narain Saboo’s (supra), decided by the Supreme Court of India, the judgment titled as M/s Taneja Developers and Infrastructure Limited Vs. Gurpreet Singh and another, First Appeal No.33 of 2014, decided on 25.02.2016, by the National Commission, reliance whereupon has been placed by Counsel for the opposite parties, to support his contention, that this Commission has no territorial jurisdiction, shall not hold the field. In these circumstances, such a Clause contained in the Agreement, therefore, could not   exclude the jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainant, to file the complaint. The objection taken by the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.”

 

               In view of above, this objection raised by the Opposite Parties stands rejected.

16.        Now coming to the merits of the case, as already stated in Para 10, above, that the possession of the plot, in question, was offered to the complainant vide letter dated 23.06.2015. The said letter was posted on 06.07.2015 as is evident from postal receipt (Annexure OP-41). Undisputedly, the said letter was received personally by the complainant on 19.11.2015 (Annexure OP-42). Vide letter dated 23.12.2015 (Annexure OP-5), the complainant wrote to the Opposite Party that he was ready and    willing to get the conveyance deed executed and registered in respect of Plot No.62, IREO Hamlet, Sector 98, SAS Nagar (Mohali), Punjab. He also stated that he had already made 100% payment of the sale consideration and the delayed compensation had already been adjusted in the last payment. He further stated that if the company could bear the cost of stamp duty on the sale consideration, registration charges and incidental expenses for execution and registration of the conveyance deed in his favour, that would help him in planning early start of construction on the said plot. The complainant, in this letter, also specifically stated as under:-

“I have also inspected the site and I am satisfied with the development carried out by the Company.”

The averment of the complainant in Para 9 of the complaint that there was no development at the project site, in view of his above extracted statement, is clearly afterthought and, thus, not tenable.

17.        The Opposite Party vide its letter dated 23.12.2015 (Annexure OP-4) agreed and confirmed that stamp duty and registration charges for execution and registration of conveyance deed for Plot No.62 shall be borne by the Company, subject to complainant’s clearing all dues and outstanding payments as intimated. It may be stated here that on receipt of letter offering possession, the complainant had already made the following payments, as reflected in Account Statement (Annexure C-4):-

05.12.2015    -     Rs.16,83,000.00

17.12.2015    -     Rs.  9,67,520.00

 

18.        On receipt of letter dated 23.12.2015 (Annexure OP-4), the complainant also made payment of balance amount of Rs.51,452/- on 23.12.2015, which is also evident from statement of account (Annexure C-4).

19.        Apparently, the complainant, relying upon the assurance of the Opposite Party, cleared all the dues and he was given assurance that conveyance deed for the plot, in question, shall be registered on or before 30.04.2016. Though the Opposite Party vide its emails dated 15.03.2016 and 30.04.2016 (Annexure OP-8) had assured the complainant that the conveyance deed shall be registered on or before 30.04.2016 and 18.05.2016 respectively, it (Opposite Party) failed to abide by its commitment. The said emails read thus:-

“Email dated 15.03.2016.

 

With reference to our meeting in our office on 03-Mar-2016 and 15-Mar-16 and though already communicated to you vide our letter dated 23-Dec-15, we once again reiterate that the stamp duty and registration charges for execution and registration of Conveyance Deed for Plot No.62 ad-measuring 273.79 Sq. Yds., IREO Hamlet, Mohali, Punjab, allotted to you vide Plot Buyer’s Agreement dated 24-Aug-2011, shall be borne by the Company.

 

Further, please note that to give effect to the above confirmation, we shall require some time.

 

Therefore, we would like to state that the Conveyance deed for your plot shall be registered on or before 30^th April 2016.”

 

“Email dated 30.04.2016.

As per our telephonic conversation, we would like to state that the Conveyance deed for your plot shall be registered on or before 18^th May 2016.”

 

20.        The complainant vide his email dated 03.05.2016 (Annexure OP-9) wrote to the Opposite Party as under:-

“As per telephonic conversation you people told that we have paid the stamp duty amount to our legal panel Advocate & he is out of station for Thursday & Friday then Saturday & Sunday is public holiday. So your title deed shall be executed definitely by Monday i.e. 03/05/2016. Sorry to say that has been passed even my title deed is still pending. The Company is every time exploiting me & my interest.

 

Now you people give me direction that your plot shall be registered on or before 18^th May 2016, any ways 18^th is also nearby. I am now fed up from your fraudulent commitments. Now I feel that I have been cheated by you people.”

 

 

 

 

21.        Though the Opposite Party again informed the complainant for getting the conveyance deed registered on or before 18.05.2016 but it utterly failed to do so and again the complainant vide email dated 14.06.2016 (Annexure OP-10), wrote to the Opposite Party as under:-

“…..I got shocked that this level of reputed companies can do this or there officials, then I again visit to your office & get issued written letter regarding registration date on or before 30/04/2016 after a full day stay there. Copy attached.

 

But very regret to inform you that today i.e. 14/06/2016 and my plot registration is still pending. Even they are not picking my phone and I never received any communication from there side.

 

I have made full payment on 23-12-2015 to IREO & availed loan from AXIS Bank. I am paying EMI from last year & till date no registration is there.

 

Now I request you people to plz do the needful & make necessary arrangement for registration of my plot no-62 in my name.”

 

22.        When the Opposite Parties failed to do the needful, the complainant filed the instant complaint on 04.07.2016 seeking refund of the entire amount paid by him to the Opposite Party viz. Rs.67,42,107/- alongwith interest. The deficiency on the part of the Opposite Party is clear from the evidence on record. Despite clearance of dues by the complainant promptly, the Opposite Parties continued seeking more time. Neither physical possession of the plot, in question, has been handed over to the complainant nor Conveyance Deed, as promised, executed. The Opposite Party has failed to give any plausible reasoning or explanation for delay in handing over possession and execution of Sale Deed despite clearance of dues by the complainant on 23.12.2015. In such a situation, the complainant is right in seeking refund of the amount deposited by him. The complainant cannot be made to wait indefinitely. Though in cases relating to refund in this project of the Opposite Party, this Commission has been granting refund alongwith 12% interest compounded quarterly but in view of position stated in earlier part of this order and overall facts and circumstances of the case, the complainant is held entitled to refund of Rs.9,88,215/- alongwith simple interest @12% per annum w.e.f. 15.02.2014, the date when the rights of the co-allottee, on payment of Rs.9,88,215/- by the complainant, were transferred in his favour, till actual payment. The complainant is also held entitled to refund of balance deposited amount alongwith interest 12% per annum simple from the respective dates of deposit(s) till actual payment.

23.        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. Clearly there has been delay in offering possession to the complainant, on account of which, he suffered mental agony and physical harassment. The compensation in the sum of Rs.5 Lacs claimed by the complainant is on the higher side. The complainant has been in default of remitting various installments as indicated in the table at Page 22 of the written statement of the Opposite Party. The table indicating delay is extracted hereunder:-

Description of Installment	Payable amount of Installment (Rs.)	Date of Demand note/due date	Details of Reminders & Final Notice	Details of Payment/ Payment received Date	No. of days of delay.
Installment payable within 30 days of allotment	2,94,576/-	29/04/2011/ 29/05/2011	Reminders dated 02/06/2011, 04/07/2011 and Final Notice dated 18/07/2011	Cheque No.971305 dated 28/07/2011	60 Days
Installment payable within 3 months of allotment	10,31,852.91 + 2,94,575.50  = 13,26,428.41	02/07/2011/ 29/07/2011	Reminders dated 02/08/2011, 17/08/2011	Cheque No.971308 for Rs.5,15,927/- and cheque no.659210 for Rs.5,15,927/- both dated 14/12/2011	138 days
Installment due on start of site development	10,31,851.32	30.04.2013/ 27.05.2013	Reminders dt. 31.05.2013, 21.05.2013, Final Notice dt. 12.07.2013, Last & Final Opportunity letter dt. 05.11.2013	Cheque No.606775 and no. 530098 both dated 14.03.2014.	291 Days
Installment due within 3 months of commencement of development work	10,31,851.22	20.03.2014/ 31.03.2014	Reminders dt. 04.04.2014, 25.04.2014 & Final Notice dated 06/01/2015	Cheque No.895342 and No.022672 both dated 19.03.2015	353 Days
Notice of possession & demand for last Installment & getting conveyance deed registered	27,01,971.13	23.06.2015/ 22.07.2015	Notice of possession only received on 19.11.2015.	DD No.264539, dated 20.11.2015 for Rs.16,83,000/- Cheque No.001303, dated 23.12.2015 for Rs.51,452/- and Cheque No.264600, dated 17.12.2015 for Rs.9,40,500/-	Payment was delayed more than 121 days.

 

             In view of facts and circumstances of the case, especially delay in remitting the installments, the complainant is not entitled to same compensation for mental agony, physical harassment and deficiency in rendering service, as this Commission, in other such cases pertaining to this project, has been granting. Under these circumstances, compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.1 lac, if granted, would be adequate to meet the ends of justice.

24.        No other point, was urged, by the Counsel for the parties.

25.        For the reasons recorded above, the complaint, is partly accepted with costs against the Opposite Party. The Opposite Party is held liable and directed as under :-

(i)

to refund the amount of Rs.67,42,107/-, to the complainant, alongwith simple interest @12% per annum (simple), w.e.f. 15.02.2014 on Rs.9,88,215/- and from the respective dates of deposit(s) for the balance amount(s), within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry simple interest @15% p.a., from the date of default till realization.

(ii)

Pay compensation in the sum of Rs.1,00,000/- (Rupees One Lac only) on account of mental agony, physical harassment and deficiency in service, and Rs.35,000/- as litigation costs, to the complainant, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

26.       However, it is made clear that in case, the complainant has availed loan facility from any financial institution(s), such an institution shall have the first charge on the amount payable, to the extent, the same is due against the complainant.

27.        Certified Copies of this order be sent to the parties, free of charge.

28.        The file be consigned to Record Room, after completion.

Pronounced.

01.11.2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 (DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

MEMBER

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