Chandigarh

StateCommission

CC/181/2015

Mr. Dinesh Kumar Rishi - Complainant(s)

Versus

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

Sandeep Bhardwaj, Adv.

06 Nov 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	181 of 2015
Date of Institution	:	21.08.2015
Date of Decision	:	06.11.2015

 

1. Mr. Dinesh Kumar Rishi son of Sh. Devraj Rishi, #C-205, Ivory Towers, Sector 70, Mohali, Punjab.
2. Mr. Pushapjeet Singh Brar son of Sh. Baldev Singh Brar, #2551, Sector 69, Mohali, Punjab.

……Complainants.

Versus

1. M/s Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Registered Office at No.5, Dhanraj Chambers, 1st Floor, Satbari, New Delhi-110074, through its Managing Director/Director/ Authorized Signatory.
2. M/s Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Corporate Office at SCO No.6 - 8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh 160009, through its Managing Director/Director/Authorized Signatory.

….Opposite Parties.

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

 

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

                 SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

 

Argued by:

 

Sh.  Sandeep Bhardwaj,  Advocate  for  the complainants.

Sh. Ramnik Gupta, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

              The facts, in brief, are that the complainants who were in need of a plot, exclusively for the purpose of their residence, by constructing a house thereon, vide application dated 17.04.2011 applied for allotment of a residential plot, in the project of the Opposite Parties and paid Rs.6,50,000/- as booking amount vide cheques dated 16.4.2011, for which receipt dated 26.04.2011  was issued by the Opposite Parties. Subsequently, the complainants were allotted Plot No.79, in the residential project “IREO Hamlet” approximately measuring 250.59 square yards, Sector 98, S.A.S. Nagar, Mohali, Punjab vide provisional allotment letter dated 29.04.2011 (Annexure C-1), alongwith Time Linked Payment Plan (Annexure C-2). Plot Buyer’s Agreement (Annexure C-3) was executed  between  the parties at Chandigarh on 09.08.2011. The total sale consideration of the plot was Rs.62,64,750/-.  The allottee was also required to pay Rs.1275.10 per square yard of the plot area towards External Development Charges (EDC) and Rs.350/- per square yard towards IFMS. As per Clause 21.2 of General Clauses of Plot Buyer’s Agreement, the Opposite Parties were to develop the said project by laying roads, water lines, sewer lines, electrical lines etc.  Further as per Clause 11.1, the Opposite Parties were liable to handover physical possession of the plot within 24 months with a grace period of 6 months i.e. not later than 30 months from the date of execution of the Agreement. Thus, the Opposite Parties were to deliver possession of the plot latest by 09.02.2014 i.e. 30 months from 09.08.2011.

2.          In the meanwhile, since complainant No.1 had shifted his accommodation to rented house, as such, information in this regard was given by him to the Opposite Parties vide email dated 5.9.2011 [Annexure C-4 (colly.)]. In the last week of March 2013, the complainants visited the site to see the development, but were surprised to see that it was not even started. The possession of the plot, in question, was not offered to the complainants by the stipulated date i.e. 09.02.2014 despite the fact that the complainants kept on making payment of the demands raised by the Opposite Parties from time to time. By 20.02.2015, the complainants, in all, had made payment of Rs.63,55,791.66 i.e. Rs.91,041.66 in excess over and above the sale consideration of Rs.62,64,750/-. At the same time, complainants had been paying a hefty amount of installments to the tune of Rs.36,372/- per month to the HDFC, from which they had obtained plot purchase loan to the tune of Rs.32 Lacs. The complainants again visited the site in the month of May 2015 but were shocked to see that still the development work was being carried out at a very snail speed, whereas on the other hand, the Opposite Parties had been making demands on false grounds of development work at pace. Even there were no motor roads and connecting roads to the site, plot no’s were not marked, no boundary walls were made and basic amenities such as electricity, roads, water PHE services and other basic amenities etc. etc. were not provided. On the other hand, even in the absence of complete development work at the site, laying of connecting roads, electricity, obtaining of necessary permissions/approvals /sanctions from the competent authorities, the Opposite Parties issued notice of possession letter dated 23.06.2015 (Annexure C-6). Alongwith the paper possession letter dated 23.06.2015 (Annexure C-6), an Indemnity Bond-cum-undertaking (Annexure C-9), statement of account (Annexure C-7) and Registration Particulars Forum (Annexure C-8) were also sent to the complainants for signatures. A threat was also given in the letter dated 23.6.2015, if possession was not taken within 30 days, the complainants had to pay holding charges @Rs.50/- per sq. yard per month. On receipt of notice of possession letter dated 23.06.2015, the complainants again visited the site and saw that still the project was not complete for want of approach roads and other basic amenities like electricity connection, drinking water, sewerage system/STP.
3.          The Opposite Parties sent letter dated 29.06.2015 (Annexure C-10), wherein they admitted that basic amenities such as internal roads etc. are still not complete. It was further informed that the Opposite Parties are ready with supply of electricity and rest is the responsibility of PSPCL. According to the complainants, still the Opposite Parties are not in a legal position to deliver possession of the unit, as still the basic amenities like internal roads, approach roads, electricity, drinking water, water for construction, sewerage treatment plant etc. etc. are not complete. Vide letter dated 27.07.2015 (Annexure C-11), the complainants informed the Opposite Parties that they would not accept the incomplete/illegal possession of the plot. Not only this, as per the complainants, it also came to their notice that revised lay out plans of the project for Sectors 86, 97, 98, 99, 105 and 106 were revised and approved by the Chief Town Planner, PUDA vide letter No.2614 CTP (PB) dated 15.05.2013 only and that too subject to various conditions, out of which, the Opposite Parties failed to comply many of them and, as such, they were not in a position to obtain No Due Certificate including other certificates from the competent authorities. It was stated that as is evident from Memo No.717 dated 20.07.2015 (Annexure C-15 colly.) issued by Assistant Executive Engineer, PSPCL Sub Division, Sohana, the Opposite Parties had not obtained permission/approval/NOC from the PSPCL and even the promoter certificate from the competent authorities was not obtained. In the absence of approval/NOC from the PSPCL till 20.07.2015, promoter registration certificate, approval of service plan, estimate of service plan, laying of roads/connecting roads, completion of development work, basic amenities and facilities, the notice of possession letter dated 23.06.2015 (Annexure C-6) was nothing but a piece of paper, issued by the Opposite Parties, just with a view to evade their liability. 

4.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) claiming refund of Rs.63,55,791.66 alongwith interest @18% per annum from the date of deposit, Rs.3,31,371/- approximately paid as interest to the HDFC Bank toards loan account No.611261415; Rs.5,00,000/- as compensation on account of mental agony, physical harassment, deficiency in service, unfair trade practice and financial loss and Rs.1,00,000/- as cost of litigation.

5.         The Opposite Parties, in their 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 09.08.2011; that the complainants were not consumers as the 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 complainants did not hire any services of the Opposite Parties, as the parties did not enter into any contract for hiring the services; that the complainants did not book the plot for their 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.

6.         On merits, it was stated that the complainants never purchased the plot, as alleged. It was further stated that the payment plan was equitably changed from time linked payment plan to development linked payment plan vide letter dated 26.9.2011. It was further stated that the internal works in terms of Clause 21.2 of the Agreement, were duly completed by the Opposite Parties as was evident from certificate dated 13.10.2015 issued by the Project-In-Charge of Ireo Hamlet Project. It was further stated that as per Clause 11, the period for offering possession of the plot travelled beyond 30 months since the complainants had agreed to receive delayed compensation @Rs.50/- per sq. yard of area of the plot every month. It was further stated that it was no where agreed that the possession was to be handed over within maximum period of 30 months or latest by February, 2014. It was denied that any assurance of providing various facilities, as alleged, was made to the complainants. Execution of Plot Buyer’s Agreement dated 09.08.2011 was admitted. It was further stated that the Opposite Parties have completed the development works as per Clause 21.2 of the Agreement and validly offered possession to the complainants vide notice of possession dated 23.06.2015 (Annexure C-6). It was denied that any threat was given vide the said notice of possession. It was further stated that the complainants did not abide by the payment schedule and made several defaults in making payment of the due installments. It was admitted that the development at the site started on 01.05.2013. It was further stated that the development work was carried out at a good pace and the Opposite Parties were able to make offer of possession to its allottees in May 2015. It was denied that the total sale consideration of the plot was Rs.62,64,750/- only. It was denied that the complainants paid Rs.91,041.66 in excess to the sale consideration. It was further stated that the alleged amount of Rs.62,64,750/- was agreed to be only against the basic sale price of the plot of area of 250.59 Sq. Yds. It was denied that the complainants have paid the entire price of the plot till date. It was further stated that as per Clause 21.2, it was agreed to between the parties that the Opposite Parties shall carry out the internal development viz. laying of roads, water lines, sewer lines, electrical lines etc. within the periphery of the IREO Hamlet project only and the development of connecting roads/external roads beyond the periphery, was to be carried by the State Govt. of Punjab. It was further stated that the development work is complete at the site except the black topping of internal roads as the STP and all the basic amenities are available at site. It was further stated that the black topping of the internal roads has not been done for the benefit of the allottees in order to avoid unnecessary expenditure in repairing the said internal roads due to movement of vehicle carrying heavy construction material on account of construction work being carried out by the Opposite Parties. It was further stated that the Opposite Parties have already been granted approval for extraction of ground water vide memo dated 19.8.2011 by the Govt. of India, Central Ground Water Authority, Ministry of Water Resources and accordingly have already installed the bore well at the site for providing drinking water. It was further stated that Punjab State Power Corporation Limited (PSPCL) had  granted approval and sanctioned electricity load to the entire project including load of Ireo Hamlet of 2502 KW vide memo No.2207 dated 08.07.2015. It was          further stated that Chief Electrical Inspector, Punjab      on 07.08.2015, had granted approval for             commission of infrastructure at the site. It was further stated  that  vide  memo  dated 9.12.2014                       

 

and 29.6.2015, the Punjab Pollution Control Board had already allowed the Opposite Parties to postpone the setting of STP till the domestic effluent of sufficient capacity to run STP is generated from the residential complex. It was further stated that the Opposite Parties have already purchased the STP, which is lying at the site and process of installing the same has already been commenced with the civil work and shall be installed within 10/15 days. It was further stated that the development at the site is a plotted development and all the lines including but not limited to sewer lines, electrical lines, water lines, rain harvesting lines have been laid underground and are not visible from the surface of the earth, however, the installation of electrical transformer, electrical feeders, street lights, bore pump, roads, foot paths, entry gate, green parks, road gullies, rain harvesting pits. etc. were clearly visible on the site being situated on the surface of the earth.   It was further stated that the Opposite Parties very fairly updated the status of the development vide letter dated 29.6.2015.

7.         It was further stated that the Opposite Parties were granted exemption from the provisions of Punjab Apartment and property Regulation Act, 1995 (in short PAPRA) except provisions of Section 32 thereof vide notification dated 14.8.2008 duly issued by the Government of Punjab. It was further stated that the Opposite Parties submitted the service plans on 01.04.2014 with the competent authorities for approval and not on 22.01.2015 and the service plans and its estimates have already been approved vide letter dated 18.5.2015. It was further stated that the Opposite Parties applied for the grant of approval from PSPCL authorities on 22.01.2013 and replied vide revised application dated 05.05.2014, approval for which was granted vide letter dated 08.07.2015. With regard to non obtaining of Completion Certificate in view of Notification dated 02.09.2014, it was stated that Notification dated 02.09.2015 is not binding upon the Opposite Parties and has no overriding effect upon the Notification dated 14.08.2008. It was further stated that the specific exemption granted vide Notification dated 14.08.2008 has neither been revoked/cancelled nor could validly be cancelled. It was further stated that though the Opposite Parties were not under any statutory obligation to obtain the completion/partial completion certificate yet in the interest of allottees including the complainants, they vide application dated 29.06.2015 had applied for issuance of partial completion certificate. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.

8.         The complainants filed replication, wherein, they reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Parties.

9.         The complainants, in support of their case, submitted their joint affidavit, by way of evidence, alongwith which, a number of documents were attached.

10.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Rajneesh, their Authorised Representative, by way of evidence, alongwith which, a number of documents were attached. 

 

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

12.         It is evident, on record, that the complainants in lieu of their application dated 17.4.2011 were allotted Plot No.79, admeasuring 250.59 Sq. Yard in the Township known as “IREO Hamlet”, situated at Sector 98, SAS Nagar, Mohali, Punjab vide provisional allotment letter dated 29.4.2011 (Annexure C-1), the basic sale price whereof was Rs.25,000/- 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 09.08.2011 (Annexure C-3). The payment against the aforesaid plot was to be regulated as per payment plan (Annexure C-2). Against the total price of Rs.62,64,750/-, besides External Development Charges and IFMS Charges, the complainants made payment in the sum of Rs.63,55,791.66. It is also evident that the Opposite Parties offered change of payment plan from Time Linked Payment Plan to the Development Linked Payment Plan vide letter dated 26.09.2011 (Annexure OP-14). As admitted by the Opposite Parties, the development work started at the site only on 01.05.2013, almost two years after the execution of Plot Buyer’s Agreement dated 09.08.2011 and possession of the plot, in question, was offered vide letter dated 23.06.2015 (Annexure C-6). It is also clearly evident from record that there was delay in remitting some of the installments by the complainants. The Opposite Parties in Para 7 of their written statement have specifically pointed out that the complainants did not adhere to the agreed payment plan and significantly there was delay in remitting 2^nd and 3^rd installments, which were remitted after delay of 440 and 245 days from the due dates. According to the Opposite Parties, the part payment towards 7^th installment in the sum of Rs.2,46,421.65 was also not paid by the complainants. 

13.       The first objection, raised by the Opposite Parties, is as regards the existence of arbitration clause 33 in the Plot Buyer’s Agreement dated 09.08.2011. It was vehemently argued by Counsel for Opposite Parties that the complaint filed under Section 17 of the Act, was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Plot Buyer’s Agreement. To say so, reference was made to Clause 33 of the Buyer’s Agreement, which reads thus:-

“33. DISPUTE RESOLUTION BY ARBITRATION

All or any disputes arising out of or touching upon or in relation to the terms of this Agreement or its termination including the interpretation and validity of the terms hereof and the respective rights and obligations of the Parties shall be settled amicably by mutual discussions failing which the same shall be settled through reference to a sole Arbitrator to be appointed by a resolution of the Board of Directors of the Company, whose decision shall be final and binding upon the Parties. The Allottee hereby confirms that it shall have no objection to the appointment of such sole Arbitrator even if the person so appointed, is an employee or advocate of the company or is otherwise connected to the Company and the Allottee hereby accepts and agrees that this alone shall not constitute a ground for challenge to the independence or impartially of the said sole Arbitrator to conduct the arbitration. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996 or any statutory amendments/modifications thereto and shall be held at the Company’s offices or at a location designated by the said sole Arbitrator in Chandigarh. The language of the arbitration proceedings and the Award shall be in English. Both the Parties will share the fees of the Arbitrator in equal proportion.”

 

14.       It is stated that in case of dispute, the same shall be settled in an amicable manner, failing which, the same shall be referred to an Arbitrator in terms of Arbitration and Conciliation Act, 1996 (in short the 1996 Act). Heavy reliance has been placed on judgment of Calcutta High Court titled as Sudarshan Vyapar Pvt. Ltd. & Anr. Vs. Madhusudan Guha & Anr., C.O. No.2648 of 2012 decided on 06.12.2012. Further reliance was placed on a judgment rendered by the State Consumer Disputes Redressal Commission, Punjab, at Chandigarh, titled as Raj Kumar Singal Vs. M/s Puma Realtors Private Limited and another, Miscellaneous Application Nos.1226 and 1227 of 2014, in Consumer Complaint No.60 of 2014 and also upon a case titled as M/s S.B.P. and Co. Vs. M/s Patel Engineering Limited and another, AIR 2006 SC 450. The Counsel for the Opposite Parties also placed reliance on Fair Air Engineers Private Limited Vs. N. K. Modi, 1996 (6) SC 140.

15.       On the other hand, Counsel for the complainant stated that in terms of Section 3 of the 1986 Act, above plea supported by the said judgments, needs to be rejected.

16.       In the case of M/s S.B.P. and Co.’s case (supra), the Hon’ble Supreme Court dealt with altogether a different issue i.e. what is the nature of function of the Chief Justice or his designate, under Section 11 of the 1996 Act. Whether it is purely an administrative function or the Chief Justice or his designate, has the power to adjudicate upon the issues like existence of Arbitration clause in the Agreement/its validity. None of the provisions of 1986 Act were under consideration. The Hon’ble Supreme Court in M/s S.B.P. and Co.’s case (supra) discussed in detail, the provisions of the 1996 Act, and then gave a finding that power of the Chief Justice of India or the High Court, under Section 11 (6) is not an administrative power but it is a judicial power. When discussing the question, as to who would fall within the definition of Judicial Authority, in terms of Section (8) of the 1996 Act, by making reference to ratio of judgment in the case Fair Air Engineers Pvt. Ltd. & Anr. Vs. N.K. Modi, III (1996) CPJ 1 (SC) = (1996 (6) SCC 385, it was only said that judicial authority will include the Courts, and also specific Tribunals like Consumer  Fora. Whether the Consumer Fora is bound to refer the matter to the Arbitrator, was not under consideration, in the above case.

17.       The part of ratio of judgment in case Fair Air Engineers Pvt. Ltd. & Anr.’s case (supra) dealing with above aspect, was not discussed in M/s S.B.P. and Co.s case (supra). In the former judgment besides opining that Consumer  Fora have all the trappings of the judicial authority, further, by making reference to the provisions of Section 34 of the Arbitration Act, 1940 vis-à-vis Section 3 of 1986 Act, in Fair Air Engineers Pvt. Ltd. & Anr.’s case (supra), it was observed as under:-

“It would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the CPC. Thereby, as seen, Section 34 of the Act does not confer and automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on their own and on the peculiar facts and circumstances of the particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.”

 

18.       It was specifically opined that the remedy under Section 3 of the 1986 Act, is in addition to and not in derogation to any other remedy available to an individual. Section 3 of the 1986 Act, read thus:-

“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.”

 

19.       The above question was again dealt with, by the Hon’ble Supreme Court of India, in National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy & Anr., I (2012) CPJ 1 (SC), and in Paras 27 to 31, it was held as under:-

“27. The next question which needs consideration is whether the growers of seeds were not entitled to file complaint under the Consumer Act and the only remedy available to them for the alleged breach of the terms of agreement was to apply for arbitration. According to the learned counsel for the appellant, if the growers had applied for arbitration then in terms of Section 8 of the Arbitration and Conciliation Act the dispute arising out of the arbitration clause had to be referred to an appropriate arbitrator and the District Consumer Forums were not entitled to entertain their complaint. This contention represents an extension of the main objection of the appellant that the only remedy available to the farmers and growers who claim to have suffered loss on account of use of defective seeds sold/supplied by the appellant was to file complaints with the concerned Seed Inspectors for taking action under Sections 19 and/or 21 of the Seeds Act.

28.  The consideration of this issue needs to be prefaced with an observation that the grievance of a farmer/grower who has suffered financially due to loss or failure of crop on account of use of defective seeds sold/supplied by the appellant or by an authorised person is not remedied by prosecuting the seller/supplier of the seeds. Even if such person is found guilty and sentenced to imprisonment, the aggrieved farmer/grower does not get anything. Therefore, the so-called remedy available to an aggrieved farmer/grower to lodge a complaint with the concerned Seed Inspector for prosecution of the seller/supplier of the seed cannot but be treated as illusory and he cannot be denied relief under the Consumer Act on the ground of availability of an alternative remedy.

29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2-Judge Bench interpreted that section and held as under:

“the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words ‘in derogation of the provisions of any other law for the time being in force’ would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.

30. In Skypak Couriers Limited v. Tata Chemicals Limited (supra), this Court observed:

“Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.”

31. In Trans Mediterranean Airways v. Universal Exports (supra), it was observed:

“In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy”.

20.       Ratio of the judgments have left nothing to chance. The National Commission, in a case titled as DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013 after taking ratio of judgment in the case of M/s S.B.P. and Co.’s case (supra), came to a specific conclusion that remedy provided under Section 3 of the 1986 Act is in addition to and not in derogation of the provisions of any other law, for the time being in force. It was specifically stated that ratio of judgment passed in M/s S.B.P. and Co.’s case (supra), will not debar a Consumer Fora from entertaining the complaint, even in cases where an alternative remedy of Arbitration is provided. Vide that judgment many Revision-Petitions were decided. Feeling aggrieved against the order dated 13.05.2013, passed by the National Commission, Rosedale Developers Private Limited/Opposite Party challenged above order in the Hon’ble Supreme Court. In the case of Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), the  Hon’ble Supreme Court of India, by making reference to the ratio of  judgment in the case M/s S.B.P. and Co.’s case (supra),  observed that the judgment has no bearing on the issue, as to whether in the face of an Arbitration Clause, Jurisdiction  can be exercised by the Consumer  Fora or not. In that judgment, the Supreme Court had not interpreted the provisions of 1996 Act in the light of the provisions contained in 1986 Act. It was further observed that the observation made in that judgment that Section 8 of the 1996 Act is mandatory, cannot lead to an inference that the Consumer  Fora is bound to make a reference to the Arbitral Tribunal. The Hon’ble Apex Court, also observed as under:-

“Before concluding, we record our strong disapproval of the mechanism employed by persons like the appellant to frustrate one of the main objectives of the Consumer Protection Act, 1986, namely, expeditious disposal of the consumer disputes. The record of the case shows that disposal of the objection raised   by the appellant has consumed almost three years' time. If the appellant had not raised frivolous and vexatious objection, the main petition may have been finally disposed of by now. Therefore, the appellant is saddled with cost of rupees one lakh which shall be deposited with the Supreme Court Legal Services Committee within a period of one month from today.”

 

As such, the facts of Sudarshan Vyapar Pvt. Ltd. and another’s and Raj Kumar Singal’s cases (supra) relied upon by Counsel for Opposite Parties No.1 and 2, cannot be applied to the facts of the present case.

21.       The position has further been clarified by the National Commission, in the latest Judgment titled as Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited, Consumer Complaint No.427 of 2014 (alongwith other 23 connected cases), decided on 08.06.2015. It was observed as under:-

“It was also contended by the learned counsel for the opposite party that since the agreements between the parties contains arbitration clause, arbitration and not a complaint before this Commission is the appropriate remedy. I, however, find no merit in this contention. As provided in Section 3 of the Consumer Protection Act, the provision of this Act are in addition to the other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching a consumer forum in a case of deficiency in the services rendered to him by the service provider or adoption of unfair trade practices by him. This issue came up for consideration of the Hon’ble Supreme Court in National Seeds Corporation Vs. M. Madhusudhan Reddy & Anr. (2012)2 SCC 506 and after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C.P. Act it was held that the plain language of Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.  The Hon’ble Supreme Court has also held that the complaint filed by a consumer before the consumer fora would be maintainable despite their being an arbitration clause in the agreement to refer the dispute to the Arbitrator. In view of the above referred authoritative pronouncement of the Hon’ble Supreme Court which was later followed by a Three Members Bench of this Commission in DLF Ltd. Vs. Mridul Estate Pvt. Ltd., R.P. No.412 of 2011 decided on 13-05-2013, the aforesaid contention advanced by the learned counsel for the opposite party is liable to be rejected.”

 

22.       Reading of ratio of the judgments referred to above, makes it clear that in case of  M/s S.B.P. and Co.’s case (supra), the issue before the Supreme Court of India was altogether different. The provisions of 1986 Act were not under consideration viz. a viz. the provisions of 1996 Act. As such, the ratio of judgments referred to above, makes it very clear that the judgments in Sudarshan Vyapar Pvt. Ltd. and another’s and Raj Kumar Singal’s cases (supra), were given by wrongly interpreting the ratio of M/s S.B.P. and Co.’s case (supra).

23.       In view of the above, it is held that the submission of Counsel for the Opposite Parties, that  the complaint filed under Section 17 of the Act, was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Plot Buyer’s Agreement, being devoid of merit, stands rejected.

24.       As regards objection of the Opposite Parties that since the complainants, did not book the plot for their personal use but for investment/commercial purpose, they were not consumers, it may be stated here that the complainants in the opening para of the complaint under the heading “MAINTAINABILITY” have specifically stated that they purchased the plot, in question, exclusively for the purpose of their residence, by constructing house thereon. In the absence of any cogent documentary evidence, brought, on record, by the Opposite Parties, to the effect, that the complainants purchased the property for investment/commercial purpose, the objection of the Opposite Parties, is not sustainable in the eyes of law. Even, no evidence was produced by the Opposite Parties, that the complainants are property dealers and are engaged in the sale and purchase of property, with an intention to gain huge profits. Further, nothing has been brought, on record, by the Opposite Parties to show that the complainants already own a house in their name besides the plot, which is the subject matter of the instant complaint. The objection being devoid of merit, is rejected.

25.       The contention of the Opposite Parties that an Agreement for sale/purchase of a plot, cannot be treated as service and, therefore, the complainants are not consumers, is also not on sound footing. It may be stated here, that it is not the case of the Opposite Parties that the complainants purchased the plot, in an open auction, on “as is where is basis”, without any further promise of the Opposite Parties, of providing amenities/facilities, and developing the area, where the plot, in question, is situated.  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 complainants have 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 them, as they fall within the definition of  a consumer, as stated above. In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

26.       The next question, which falls for consideration, is, as to whether the remedy of the complainants to seek refund after offer of possession by the Opposite Parties, vide letter dated 23.06.2015 (Annexure C-6) was barred. The Counsel for the Opposite Parties submitted that once the notice of possession was sent, the complainants could not seek refund. He relied upon Clause 11.3 of the Plot Buyer’s Agreement dated 09.08.2011, Annexure C-3, which is extracted hereunder:-

“11.3

Subject to Clause 11.1, in the event of delay by the Company in handing over the possession of the said Plot beyond a period of 12 months from the end of the Grace Period (such 12 month period hereinafter referred to as the “Extended Delay Period”), then the Allottee shall become entitled to opt for termination of the Allotment/Agreement and refund of the actual paid up installment(s) made against the said Plot after adjusting the interest/penalty on delayed payments along with Delay Compensation for 12 months. Such refund shall be made by the Company within 90 days of receipt of intimation of this effect from the Allottee, without any interest thereon. For removal of doubt, it is clarified that Delay Compensation payable to the Allottee who is validly opting for termination, shall be limited to and calculated for the fixed period of 12 months only irrespective of the date on which the Allottee actually exercised the option for termination. This option of termination may be exercised by the Allottee only up till dispatch of the Notice of Possession by the Company to the Allottee whereupon the said option shall be deemed to have irrevocably lapsed. No other claim, whatsoever, monetary or otherwise shall lie against the company nor be raised otherwise or in any other manner by the Allottee.

 

The Counsel for the Opposite Parties submitted that the complainants could exercise option of termination only up-till dispatch of the Notice of Possession by the Opposite Parties to them whereupon the said option was deemed to have irrevocably lapsed. In the instant case, from the date of execution of Plot Buyer’s Agreement on 9.8.2011, 42 months period i.e. 24 months + 6 months (grace period) + 12 months (extended delay period), expired on 8.2.2015. Possession was offered to the complainant vide letter dated 23.06.2015 (Annexure C-6) much after the expiry of period of 42 months. Whether mere offer of possession of plot, will disentitle the complainants, to claim refund of the amount deposited by them or not? In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the National Commission, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the National Commission, holding as under:-

“It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment,  with  grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

23.    As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants,  started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and  respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked,  then we fail to understand as to how  before completing the construction appellants demanded the aforesaid amount.  This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment,  subject to certain payments.

24.    Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from  the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period.  Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and  part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013,  which was against the terms of the Agreement.  The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013.  Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25.    The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

27.       It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill ‘s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date.  In the above case, it was laid down as a matter of fact that non-acceptance of possession after the agreed date, would not amount to rescinding of contract.

28.       In the present case also, the Opposite Parties committed breach of their obligation, in not offering possession of the plot, in question, within 30 months from 09.08.2011 i.e. date of signing of Buyer’s Agreement and even after expiry of extended delay period of 12 months, on 8.2.2015. The contention of the Opposite Parties that the complainants did not make payment of some of the installments and, as such, they could not terminate the Agreement and were not entitled to refund, is not well based. 30 months period expired on 8.2.2014, and even 12 months extended delay period expired on 8.2.2015. As a matter of fact, possession of the plot was offered only on 23.06.2015. A perusal of Clause 11.3 of the Plot Buyer’s Agreement clearly provides that “……..from the end of the Grace Period (such 12 month period hereinafter referred to as the “Extended Delay Period”), then the Allottee shall become entitled to opt for termination of the Allotment/ Agreement and refund of the actual paid up installment(s) made against the said Plot….”. It, therefore, means that the complainants are entitled to refund of amount/installments paid by them. In our opinion, Clause 11.1 cannot have overriding effect over Clause 11.3 of the Agreement. Thus, in our considered opinion, the complainants were entitled to refund of the deposited amount and by not refunding the same, the Opposite Parties were deficient in rendering service. Furthermore, when the Opposite Parties are charging interest for any delay in making payment of installments, their plea that the complainant cannot invoke provisions of Clause 11.3 of the Agreement is not justified. In the instant case, cause of action also accrued to the complainants because possession offered was not complete, legal and valid.

29.       The next question, which falls for consideration, is, as to whether the development and the basic amenities were complete at the site before offering possession vide letter dated 23.06.2015 or not. The Counsel for the complainants submitted that possession of the plot, in question, vide letter dated 23.06.2015 was not complete, valid and legal possession and the same was offered by the Opposite Parties to cover up their deficiency and delay in offering the possession. He further submitted that as per Clause 11.5 of the Plot Buyer’s Agreement, before offering possession, the Opposite Parties were required to notify the complainants in writing to come for final demarcation and measurement of the said plot and to take over possession and possession was to be handed over only after final demarcation and measurement of the said plot. He further submitted that the area of the plot as per Plot Buyer’s Agreement was 250.59 Sq. Yards whereas as per Annexure C-6, which is letter offering possession dated 23.06.2015, the area of the plot was shown as 249.75 Sq. Yards. Thus, possession offered was without complying the aforesaid condition in the Plot Buyer’s Agreement. It may be stated here that nothing has been placed on record by the Opposite Parties that before offering possession of the plot, in question, to the complainants on 23.06.2015, they ever notified the complainants in writing to come for final demarcation and measurement of the said plot. Thus, the Opposite Parties apparently did not comply with the provisions of Clause 11.5 of the Plot Buyer’s Agreement. Furthermore, while offering possession vide letter dated 23.06.2015 (Annexure C-6), the size of the allotted plot was shown as 249.75 Sq. Yards whereas the size of the said plot as mentioned in the provisional allotment letter dated 29.04.2011 (Annexure C-1) and Plot Buyer’s Agreement dated 9.8.2011 (Annexure C-3) was 250.59 Sq. Yards. Therefore, by not complying with provisions of Clause 11.5, the Opposite Parties kept the complainants in dark regarding actual size of the plot while issuing the letter offering possession (Annexure C-6) and, as such, this deficiency is galore on their part.    

30.       There is also nothing, on record, that complete development, in respect of the plot, in question, and amenities at the site as promised, as per the Plot Buyer’s Agreement dated 09.08.2011, Annexure C-3, were available at the site. Had the amenities been completed at the site, then certainly the Opposite Parties, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed, on record, their reports, to prove that factum. Though the Counsel for the Opposite Parties pleaded that the basic amenities such as water lines, sewer lines, etc., were required to be provided underground and the same have been provided, but they failed to produce any cogent and convincing evidence to the effect that all other amenities at the site where the plot, in question, was located were complete and necessary approvals had been obtained before they (Opposite Parties) offered possession vide their letter dated 23.6.2015 (Annexure C-6). The Opposite Parties in Paras 16 - 18 of their reply have stated that  the black topping of the internal roads has not been done in order to avoid unnecessary expenditure of the allottees in repairing the internal roads due to movement of vehicle carrying heavy construction material on account of construction work being carried out by the Opposite Parties.  It was, however, stated that the external road network and other external infrastructure is the obligation of the State Government. The Opposite Parties also stated in their reply that they are in the process of installing STP. We have carefully considered the above submissions. Even if the contention of the Opposite Parties that certain underground amenities have been provided and the STP installation work has been initiated, the fact that certain amenities and approvals were complete/obtained after offer of possession, clearly proves their deficiency, as is evident from the position indicated hereinafter. As is evident from letter dated 14.5.2013 (Annexure OP-7), validity of NOC from Pollution Angle by Punjab Pollution Control Board was for one year from the date of its issue or till the complete development of residential colony, whichever is earlier. The same was extended vide letter dated 9.12.2014 up-to 13.5.2015. The Opposite Parties have not placed any document on record that they had NOC from Pollution angle beyond 13.5.2015. They had apparently no NOC, when possession was offered on 23.06.2015. The same was extended subsequently vide letter dated 29.06.2015 (Annexure OP-9). Final NOC was granted by PSPCL on 08.07.2015 (Annexure OP-11) after notice of possession dated 23.06.2015. Perusal of Annexure OP-12, which is memo dated 07.08.2015 from Punjab Electrical Inspectorate, reveals that installations were approved for commissioning only on 07.08.2015. Even letter dated 18.05.2015 (Annexure OP-48) from Greater Mohali Area Development Authority (GMADA), informed the Opposite Parties that “…….Therefore, the arrangements for suitable provision for drinking water supply and safe disposal of sullage/storm discharge and solid waste management shall be made by promoter at his level separately and he shall obtain all necessary approvals from the concerned Authorities as per law in this regard independently. The construction work shall commence only after obtaining approvals as per law from the concerned Authorities……” Besides, number of other conditions were also required to be complied with by the promoter. The Opposite Parties have not stated whether they complied with the aforesaid conditions. Certificate dated 13.10.2015 (Annexure OP-41), given by Sh. Sukhwinder S. Bhatia, General Manager (Project Management), stating that the work of laying of sewerage & storm water piping, water supply DI piping, electrical cable, GSB & WBM in the internal roads, fixing Kerb stone, drain channels, construction of rainwater harvesting system, bore well for drinking water, roadside street lights poles and landscaping of area earmarked as parks have been completed; is not of much help to the Opposite Parties, when it is clearly evident from the documents of Opposite Parties itself that certain amenities/approvals were completed/obtained after offer of possession on 23.6.2015. The Opposite Parties also cannot wash off their responsibility for non-development of external infrastructure on the ground that the same was the obligation of the State Government. When they (Opposite Parties) have received External Development Charges, they were duty bound to ensure by pursuing with the State Government that external infrastructure was complete. It was obligatory on part of the Opposite Parties to handover possession to the complainants complete in all respects but they miserably failed to do so. Clearly development and amenities were not complete when possession was offered on 23.6.2015, and provision contained in Clause 11.5 of Plot Buyer’s Agreement was not complied with.

31.       The complainants have specifically challenged the offer of possession by way of filing the instant complaint for not obtaining necessary approvals from the Competent Authorities by the Opposite Parties and lack of development and basic amenities at the site. As is evident from email dated 27.7.2015 (Annexure C-11), on receipt of possession letter dated 23.6.2015 (Annexure C-6), the complainants expressed their concern about delay of the project and non-completion of promised basic amenities/facilities. The contents of this email, being relevant are extracted hereunder:-

“In reference to Notice of possession letter sent for IH-Plot-79 dated 23-06-15. We want to bring to your notice that, there is so much of work pending from IREO side and after that also the possession letter are issued which seems to be insensitive to buyer’s concern and illegal. I am therefore writing this to you to inform you that the handover the plot for possession is unfit and illegal till:

• Proper road access either via Sec 98-99 as per master plan is not carried out.
• Perimeter boundary wall construction completion is done 1005. Currently, only one side partial wall is built.
• Construction within the compound is complete considering inside roads, lighting, sewage and water supply system, Water Tank, Sewage Treatment Plan, Sewage and water connectivity to GMADA lines aren’t done.

Also, as per clause in Plot’s Buyer Agreement, clause 11.1, whereby the company was supposed to handover the possession of the said Plot to the Allottee within a period of 12 months from the end date of Grace Period. In case Ireo doesn’t complete the gaps mentioned above, and tries to handover the possession letter to us, this letter shall be treated as auto termination of buyer agreement, through which, we are entitled to opt for the termination of the Allotment/Agreement and to get refund of the actual paid up installments made against the said plot after adjusting the interest/penalty on the delayed payments along with delay Compensation of 12 months.

Also, as per clause 11.5, the company shall have notified in writing to come for final demarcation and measurement of the plot and to take over the possession which has not happened here so it seems that the company has issued possession letter in hurry and with malafide intention, without sending the required notice so that owners can verify the completion of work at Project site which has not happened in actual.   

As per clause 21.2, the company should have carried out the internal development within IREO Hamlet project including roads, sewerage, water lines, electrical lines etc. which is currently not up to the living standards. The company should recall the possession note and send the notice once some satisfactory work is done there so that the maintenance charges which company has already started seems valid.

Also, as per Punjab Apartment and Property Regulation Act, 1995, Chapter II Clause (2)(i) not allow person to enter into possession until an occupation certificate required under any law is duly given by appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained; Clause (7) Promoter/company shall carry out and complete development of land in accordance with the provisions of the Urban Land (Ce4iling and Regulation) act, 1976 (Central Act 33 of 1976) and other laws for the time being in force; Clause (11) maintenance and upkeep of all roads; Clause (12) where promoter/company fails to deliver possession in accordance with terms of its agreement, the company is liable to refund the amount already received by him in respect of that plot with applicable interest rate as determined by competent authority from the date the company received the payments; clause 14(1)(ii) stating responsibility of Promoter/Company to obtain completion certificate from competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5.

Considering above all, it is clearly depicts company is pushing us to take the possession which is unjustified and further harassing on payments (like holding charges, maintenance charges, registry costs etc.). So taking into account the unjustified and undesired stance taken by Ireo/Puma Realtors in pushing us to accept the possession letter and further harass us on payments, I have decided NOT TO ACCEPT POSSESSION of the said plot and will be taking other measures to request Ireo/Puma Realtors to recall possession letter till such time when IREO Hamlet is developed and as per our satisfaction. Failing to do so, we may have to finally take action to withdraw from the project seeking full compensation on money paid with interest, delayed project compensation and other mental agony and harassment compensation.”

32.       Though it is evident from Memo No.5001 dated 7.8.2015 (Annexure OP-12), which is letter from the Chief Electrical Inspector to Govt. Punjab, Patiala wherein it was stated that inspection of subject cited electrical installation was carried out by the Electrical Inspector and the same was found to be conforming to the relevant provisions of Central Electricity Authority (Measure relating to safety and Electric Supply) Regulations, 2010 and the installations were approved for commissioning but clearly, this approval was accorded after offer of possession on 23.6.2015.

33.       Even the final NOC to the Opposite Parties for 85.25 Acres residential township in Sectors 86, 98 and 99 in Village Sambhalkhi, SAS Nagar, Mohali was accorded by Punjab State Power Corporation Limited on 8.7.2015 (Annexure OP-11), after offer of possession on 23.6.2015. Further from perusal of information obtained under RTI dated 20.7.2015 and 10.08.2015 (Annexures C-18 and C-19), it is established that the Opposite Parties (M/s PUMA Realtors Private Limited) have not been issued completion certificate in respect of Sector 98, where the plot allotted to the complainants is located. It is also evident from Annexure C-20, which is copy of information under RTI dated 21.8.2015 and 16.02.2015 that GMADA intimated the Opposite Parties that for obtaining Completion/Partial Completion Certificate for its Mega Projects/Colonies, as per Notification No.4966-CTP(PB)/Partial Completion Certificate issued by the Government, a Competent Officer of GMADA had been appointed and the Opposite Parties were, therefore, requested to move a request letter for obtaining completion/partial completion certificate in respect of their projects. Further as per information dated 16.09.2015 (Annexure C-21) issued  by GMADA         under RTI, the Opposite Parties applied for             partial completion certificate for Sectors 86, 98 and 99, SAS Mohali vide their application dated 29.6.2015 (Annexure C-22) and the case for issuance of partial completion certificate to the promoter is pending in its office. The Opposite Parties have averred that they were exempted under PAPRA, except provisions of Section 32 thereof, vide notification dated 14.8.2008 and were not required to obtain completion certificate and they applied for partial completion certificate only for the benefit of the complainants. Irrespective of the fact whether completion certificate was required to be obtained or not, it is abundantly clear from the evidence on record that amenities were not complete when possession was offered.

34.       It is also evident from memo No.717 dated 20.07.2015 (Annexure C-25) from Assistant Executive Engineer, Operation Sub Division, PSPLC Sohana, sent to one Abhishek Lal (whose Consumer Complaint bearing No.133 of 2015 was partly accepted by this Commission vide order dated 26.10.2015) that the Opposite Parties jointly applied for electrification scheme for Sectors 89, 97, 98, 99, 105 and 106 in the year 2012 for load 2358.5 kv, which is still pending for sanction by PSPCL Authorities as the same was having certain shortcomings/objections, which were to be removed by the Developer – M/s Puma Developers. It is also stated in this letter that as the scheme is yet to be approved and final NOC to M/s PUMA Realtors is due, nothing has been deposited by the developer for permanent electricity of project namely IREO Hamlet Sector 98, Mohali. Further letter dated 14.07.2015 (Annexure C-26), containing information relating to M/s PUMA Realtors Pvt. Ltd., under RTI Act, 2005 furnished to Superintendent (Relation) cum Assistant Public Information Officer, PUDA, SAS Nagar, wherein it was informed that as per meeting of Empowerment Committee held on 11.06.2014, the projects were agreed to be completed by 30.06.2015.

35.       It is important to mention here that though it was stipulated in Annexure C-26 that the projects of the Opposite Parties were to be completed by 30.06.2015, yet vide letter dated 29.06.2015 (Annexure C-10) i.e. after offer of possession on 23.06.2015, the Opposite Parties provided update as regards Electricity, Roads, Signages, STP, Water Supply and Green Areas and lastly stated as under:-

“We would like to apprise you that Phase 1 of Ireo Hamlet is a part of larger development Mega Project comprised of 145 acres for which infrastructure and road connectivity is under ongoing development (“Project”). The development of the project is to be done in phased manner. Further features like swings etc. shall be added to the Greens in the project in phased manner and the company is committed to it in due course of time. We would advise to start construction of house over the plots……… Plots demarcation has already been done at site. Final measurement can be verified by owners upon taking possession of their plot after completing all formalities, prior to registration of conveyance deed……”

Since the possession offered by the Opposite Parties was without complete development and basic amenities, certainly cause of action to seek refund accrued to the complainants. Thus, since the Opposite Parties failed to handover legal and valid possession of the plot, in question, to the complainants, even after expiry of 42 months from the execution of Plot Buyer’s Agreement, in view of law laid down in Emaar MGF Land Limited and another Vs. Dilshad Gill ‘s case (supra), the complainants were entitled to seek refund.

36.       From the aforesaid discussion, it is evidently clear that neither the Opposite Parties have completed the development and basic amenities nor did they have all the necessary sanctions/approvals from the Competent Authorities up-till 23.6.2015 when offer of possession was made. Thus, the contention of the complainants that possession offered was not a valid and legal possession is corroborated from the evidence on record. It is, therefore, held that the Opposite Parties were not only deficient, in rendering service but also indulged into unfair trade practice, by offering a paper possession to the complainants, before completing the basic amenities as also without obtaining the necessary sanctions/ approvals.

37.       In our considered opinion, provision of 12 months extended delay period in Clauses 11.2 and 11.3 operates very harshly against the complainants. The Opposite Parties have in a very unreasonable manner gained 12 months time to offer possession and relief admissible to the complainants is negligible. The plot, in question, measures 250.59/249.75 sq. yards and @Rs.50/- per sq. yard, the compensation amount works out to Rs.12,500/- approximately per month. The complainants in all paid an amount of Rs.63,55,791.66Ps and this per month compensation for the delayed period        is not even equivalent to simple per annum interest on a Savings Bank Account. Even payment of this compensation is deferred till registration of conveyance deed. Thus, while the Opposite Parties have been enjoying the substantial amount of money of the complainants, virtually no benefit accrued to the complainants for the extended delay period. On the other hand, the Opposite Parties charged 15% interest from the complainants in default of any installment due, in terms of Clause 7.2 of the Plot Buyer’s Agreement.       

38.       The next question, which falls for consideration, is, as to whether, in the circumstances, referred to above, the complainants are entitled to refund of the amount deposited by them with interest, if yes, to what extent. Since it has been held above that the Opposite Parties failed to offer possession even after lapse of 42 months, and possession offered thereafter vide letter dated 23.06.2015 (Annexure C-6) was not a legal and valid possession with all basic amenities as provided under the terms and conditions of the Plot Buyer’s Agreement dated 9.8.2011 (Annexure C-3), the complainants are definitely entitled to the refund of amount of Rs.63,55,791.66Ps deposited by them with the Opposite Parties. No doubt, Clause 20.1 of Plot Buyer’s Agreement dated 9.8.2011 provides interest @7.5% in such a situation, but considering the period the hard earned money of the complainants remained with the Opposite Parties, coupled with the fact that in terms of Clause 7.2 of the Plot Buyer’s Agreement, the Opposite Parties charge 15% interest on delayed payment, refund of Rs.63,55,791.66Ps alongwith compound interest quarterly @12% from the respective dates of deposit shall meet the ends of justice.

39.       The next question, which falls for consideration, is, as to whether, the complainants are entitled to any compensation or not. The complainants deposited their hard earned money, in the hope that they will have a house to live in. The Plot Buyer’s Agreement was executed on 9.8.2011. Clearly as per Clause 11.1 of the Plot Buyer’s Agreement, the initial period, excluding the grace period and the extended delay period, was two years but as admitted by the Opposite Parties, the development at the site started on 01.05.2013, almost two years after execution of Plot Buyer’s Agreement. On account of non-delivery of legal physical possession of the plot, in question, complete in all respects, by the Opposite Parties, to the complainants, and, on the other hand, by offering only a paper possession and not refunding the amount deposited, they (complainants) had certainly suffered immense physical harassment and mental agony. It is, however, a fact that complainants were also defaulters as 2^nd & 3^rd installments were remitted by them (complainants) after delay of 440 and 245 days from the due dates and further, the part payment towards 7^th installment in the sum of Rs.2,46,421.65 was also not made  by  them (complainants). Nevertheless, the Opposite Parties were certainly deficient in rendering service and indulged into unfair trade practices, which caused immense physical harassment and mental agony to the complainants. In our considered opinion, in the face of position aforesaid, compensation in the sum of Rs.1,00,000/- would be just and adequate, to meet the ends of justice.

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

41.        For the reasons, recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally, held liable and directed in the following manner:-

 (i)  To refund the amount of Rs.63,55,791.66Ps, to   the   complainants,   alongwith compound  interest quarterly @12%, from the respective dates of deposits, within three months, from the date of receipt of a certified copy of this order.

(ii)  To pay an amount of Rs.1,00,000/-  (Rupees One Lac only), to the complainants, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices, within a period of three months from the date of receipt of a certified copy of the order.

(iii) Housing Development Finance Corporation Limited (HDFC) shall have the first charge, on the amount to be refunded, to the complainants, by the Opposite Parties, to the extent, the amount is due to it, against the complainants as it (HDFC) advanced loan in their (complainants) favour for part payment of the price of plot, in question.

(iv)  To pay cost of litigation, to the tune of Rs.50,000/- to the complainants.

 (v)  In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with compound interest quarterly @15%, from the respective dates of deposits, till realization and amount mentioned in Clause (ii) above, with compound interest quarterly @12% from the date of default till realization,       besides payment of costs, to the tune of Rs.50,000/-.

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

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

Pronounced

November  06, 2015.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

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