Chandigarh

StateCommission

CC/132/2015

Mr. Gurpreet Singh - Complainant(s)

Versus

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

Sandeep Bhardwaj, Adv.

26 Oct 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	132 of 2015
Date of Institution	:	08.07.2015
Date of Decision	:	26.10.2015

 

Mr.Gurpreet Singh, son of S.Balwinder Singh, aged 31 years, earlier residing at House No.359, First Floor, Sector 48, Faridabad, Haryana-121001.

Present Address:- H.No.37, Octroi Post No.8, Near Village Nawa Purba, Faridkot Road, Ferozpur, Punjab.

……Complainant.

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.

 

Consumer Complaint	:	133 of 2015
Date of Institution	:	08.07.2015
Date of Decision	:	26.10.2015

 

Mr. Abhishek Lal, son of Dr. P. D. Lal

Correspondence Address:- Rohtang Hotel Building, Dhalpur, Kullu, Himachal Pradesh – 175101.

……Complainant.

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 complainant.

Sh. Ramnik Gupta, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

            Vide this common order, we propose to dispose of two complaints bearing No.132/2015 and 133/2015, referred to above. Since the facts involved in the two complaints are almost identical, the facts are being culled from complaint case No.132 of 2015 titled as ‘Sh. Gurpreet Singh Vs. PUMA Realtors Private Limited and Another’.

2.              The facts, in brief, are that one Ms. Poonam Chaudhary vide application dated 17.02.2011 applied for allotment of a residential plot, in the project of the Opposite Parties and paid Rs.6,50,000/- as booking amount vide cheque dated 10.02.2011, for which receipt dated 26.04.2011 (Annexure C-1) was issued by the Opposite Parties. Subsequently, she was allotted Plot No.42, in the residential project “IREO Hamlet” approximately measuring 251.51 square yards, Sector 98, S.A.S. Nagar, Mohali, Punjab vide provisional allotment letter dated 29.04.2011 (Annexure C-2), alongwith Time Linked Payment Plan (Annexure C-3). Plot Buyer’s Agreement (Annexure C-4) was executed  between        Ms. Poonam Chaudhary, and the Opposite              Parties at Chandigarh on 02.08.2011. The basic sale price of the plot was Rs.57,84,730/-.  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 February 2014 i.e. 30 months from August 2011.

3.          In August 2011, the complainant  approached the Opposite Parties for purchase of a plot exclusively for the purpose of his residence and for his family members, by constructing house thereon. He came to know that Plot No.42, which was selected by him had already been sold to one Ms. Poonam Chaudhary, who agreed to sell the same to the complainant. All the payments made by Ms.Poonam Chaudhary to the Opposite Parties were repaid to her by the complainant and, as such, all rights and interests in the plot were transferred in favour of the complainant, by the Opposite Parties, vide endorsement dated 04.08.2011. The complainant paid Rs.9,47,885/- vide receipt dated 27.05.2013 (Annexure C-7). By May 2013, the Opposite Parties had already received Rs.27,63,480/-. Since as per the Plot Buyer’s Agreement, possession of plot was to be handed over by February 2014, the complainant waited patiently for demand of further payments and delivery of possession. Thereafter the Opposite Parties kept silent and did not make any demand. The complainant visited the site to see the development, but was surprised to see that it was being done at a snail speed. In the meantime, it came to the notice of the complainant that the layout plans in respect of the project in question had not been got finalized by the Opposite Parties till 2013. It further came to the notice of the complainant that revised layout plans of the projects of the Opposite Parties 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.
4.          It was stated that possession of the plot was not offered by the stipulated date i.e. 02.02.2014. By 13.08.2014, the total amount of Rs.46,59,247.90 had been paid by the complainant out of the total sale consideration of Rs.57,84,730/- yet possession of the plot was not even offered to him. The complainant again visited the site and found that there was no development and the basic amenities, including PHE services had not been provided at the site. Vide demand notice dated 16.10.2014, the Opposite Parties asked the complainant to make payment of Rs.5,78,473/- on account of completion of PHE services. Finding no development and basic amenities at the site, the complainant sent email dated 08.11.2014 (Annexure C-11) to the Opposite Parties. Vide email dated 21.11.2014 (Annexure C-12), the Opposite Parties informed the complainant that the aforesaid demand had been inadvertently raised and the same shall be raised on achievement of the relevant milestone for the plot of the complainant.

5.         The complainant again visited the site in 2015 and was 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 etc. etc. were not provided. The complainant met the officials of the Opposite Parties and requested them to apprise with regard to the completion of development work at the site and delivery of possession of Plot No.42 but they did not give any satisfactory reply and told that it would be delivered shortly.    By 30.03.2015, the complainant had already made payment of Rs.59,06,195/- as was evident from statement of account (Annexure C-15) issued by the Opposite Parties, against the total basic sale price of Rs.57,84,730/-.

6.          To the utter surprise of the complainant, 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 21.05.2015 (Annexure C-13). Alongwith the paper possession letter dated 21.05.2015 (Annexure C-13), an Indemnity Bond-cum-undertaking (Annexure C-14), statement of account (Annexure C-15) and Tripartite Maintenance Agreement was sent to the complainant for signatures. On receipt of notice of possession letter dated 21.05.2015, the complainant again visited the site and saw that still the project was not complete for want of basic amenities and approvals/sanctions, but on the other hand, the Opposite Parties had issued dummy possession letter.
7.          On contacting, the officials of the Opposite Parties told the complainant that as far as the approach/connecting roads were concerned, the same was the duty of the Government of Punjab, which had assured that the roads would be ready, so he should approach  the Government for the same. It was further told that the basic amenities would be provided shortly. The complainant raised the issues by sending email dated 05.06.2015 (Annexure C-16), challenging the notice of possession letter. It was stated that the Opposite Parties had not even obtained promoter certificate from the competent authorities. It was also stated that approval from the competent authorities regarding service plans etc. had also not been obtained and the Opposite Parties had been raising the demands on false grounds of development at the site. They had been claiming that all the Public Health and Electricity services were complete, whereas even necessary permissions/approvals with regard to the same had not been obtained by them (Opposite Parties) from the Competent Authorities, as the documents sent by them to the GMADA were having various deficiencies. From information dated 16.06.2015 (Annexure C-19) (colly.), it was clear that the Opposite Parties had not even obtained approval for electricity for the said project. It was evident from Memo No.622 dated 16.06.2015 (Annexure C-19 colly.), issued by Assistant Executive Engineer, Operation Site Division, PSPCL, Sohana, that still the Opposite Parties have not obtained permission/approval/NOC from the PSPCL and the earlier documents sent by them in the year 2012 were rejected on account of certain observations and thereafter they never applied to it. In the absence of approval/NOC from the PSPCL till 16.06.2015, 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 21.05.2015 (Annexure C-13) was nothing but a piece of paper, issued by the Opposite Parties, just with a view to evade their liability. 

8.         The Opposite Parties again sent letter dated 29.06.2015 (Annexure C-21) wherein they admitted that basic amenities such as roads etc. are still not ready complete in all respects. The Opposite Parties wrote that they were ready with supply of electricity to the allotteess and rest was the responsibility of PSPCL and, as such, the allottees could directly contact them for connection. Further the contents of letter dated 29.06.2015 (Annexure C-20) made it abundantly clear that still the Opposite Parties are not in a legal position to deliver possession of the units. The Opposite Parties are not even ready with basic amenities to be provided to the allotteess, which fact is also established from letter dated 29.06.2015 aforesaid. Thus, notice of possession letter dated 21.05.2015 is just a piece of paper issued by the Opposite Parties in a haste to evade their liability.

9.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) claiming refund of Rs.59,06,195/- alongwith interest @18% per annum from the date of deposit, 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.

10.       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 02.08.2011; that the complainant was not consumer 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 complainant did not hire any services of the Opposite Parties, as the parties did not enter into any contract for hiring the services; 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.

11.       On merits, it was stated that the complainant never applied for allotment of the plot with the Opposite Parties but had entered into an agreement to sell for purchase of the said plot with the original allottee namely Ms. Poonam Chaudhary in the year 2011 and, accordingly, the complainant as well as the original allottee applied for transfer/assignment of the said allotment in favour of the complainant, which was accordingly done by the Opposite Parties. 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 complied by the Opposite Parties as was evident from certificate dated 05.08.2015. It was further stated that as per Clause 11, the period for offering possession of the plot travelled beyond 30 months since the complainant 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 complainant. Execution of Plot Buyer’s Agreement dated 02.08.2011 was admitted. It was further stated that the layout plan of Ireo Hamlet project was approved on 11.4.2008, which was got revised vide memo dated 15.5.2013. It was denied that possession was to be offered by 02.02.2014. It was further stated that the complainant did not abide by the payment schedule and made several defaults in making payment of the due installments. It was admitted that the complainant paid Rs.49,59,247.90Ps till 13.08.2014. It was further stated that the complainant was also required to pay Rs.1,275.10 per sq. yard of the plot area towards EDC and Rs.350/- per sq. yard towards IFMS apart from basic sale price of Rs.57,84,730/-. It was further stated that the development work was being 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 further stated that the complainant was informed that he was not required to pay the demand raised vide demand note dated 16.10.2014, because the PHE service to his plot were not complete. It was further stated that on completion of PHE service to the plot of the complainant, demand vide demand note dated 8.1.2015 was raised, which the complainant paid on 6.2.2015. It was further stated that on completion of two courses of WBM at the site,  demand was raised in March 2015, and thus, the issue of completion of internal roads prior to March 2015 did not arise. 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 within the periphery of the IREO Hamlet project only and the development beyond the periphery, was to be carried by the State Govt. of Punjab. It was further stated that the Opposite Parties never represented or assured for construction of the sector road. With respect to STP, it was stated that technically STP works/operates on some required minimum habitation in the project. It was further stated that provisions for providing STP in the project have duly been made. It was further stated that STP is not required at the stage of handing over of possession in a plotted development since a substantial quantity of sewage disposal is required to run STP. It was further stated that vide memo dated 9.12.2014 (Annexure OP-17) and 29.6.2015 (Annexure OP-18), 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.

12.       It was further stated that after completion of the development works as per the obligations under Clause 21.2 of the Agreement, possession was offered to the complainant vide notice of possession dated 21.5.2015 (Annexure C-13).  It was further stated that all the requisite approvals were obtained from the competent authorities as is evident  from the approval of layout plan on 11.4.2008 and clearance of the project by Pollution Control Board, Punjab vide memo dated 14.5.2013, Environment clearance dated 30.11.2012. It was further stated that sewer lines, electrical lines, water lines and 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 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 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.

13.       The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Parties.

14.       The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.

15.       The Opposite Parties, in support of their case, submitted the affidavits of Sh. Rajneesh, their Authorised Representative and Sh. Sukhwinder Singh Bhatia, Project-In-Charge, by way of evidence, alongwith which, a number of documents were attached. 

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

17.         It is evident, on record, that the complainant vide letter dated 29.4.2011 (Annexure C-2) was allotted plot No.42 in the residential project “IREO Hamlet” admeasuring 251.51 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 original allottee Ms. Poonam Chaudhary and the Opposite Parties on 02.08.2011 (Annexure C-4). It is also admitted that the complainant as well as the original allottee applied for transfer/assignment of the said allotment in favour of the complainant, which was accordingly done by the Opposite Parties. The payment against the aforesaid plot was to be regulated as per payment plan (Annexure C-3). Against the total price of Rs.61,93,458/-, the complainant made payment in the sum of Rs.59,04,247.90. 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 and the complainant did not raise any objection, to the same. As admitted by the Opposite Parties, the development work started at the site only on 01.05.2013. Thus, the development started, almost two years after the execution of Plot Buyer’s Agreement dated 02.08.2011 and possession of the plot, in question, was offered vide letter dated 21.05.2015 (Annexure C-13).  

18.       The first objection, raised by the Opposite Parties, is as regards the existence of arbitration clause 33 in the Plot Buyer’s Agreement dated 02.08.2011. To this effect, the Opposite Parties also moved an application under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996 (as amended up to date) for referring the parties to resolve the matter through Arbitration in terms of Clause 33 of the Plot Buyer’s Agreement dated 02.08.2011. 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.”

 

19.       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. and another’s case (supra). 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, Auro Developers Vs. Mala Mukherjee, C.O. No.2828 of 2010 decided by Calcutta High Court on 23.12.2011, Indusind Bank Ltd. Vs. Gadhadhar Banerjee, C.O. No.223 of 2009 decided by Calcutta High Court on 1.4.2010, CDC Financial Services (Mauritius) Ltd. Vs. BPL Communications Ltd. and others, (2003) 12 SCC 140, Shin-Etsu Chemical Co. Ltd. Vs. Aksh Optifibre Ltd. and another, (2005) 7 SCC 234, Rashtriya Ispat Nigam Ltd. and another Vs. Verma Transport Co., (2006) 7 SCC 275, and Allahabad Bank Vs. Canara Bank & Ors., (2000) 4 SCC 406.

20.       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.

21.       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.

22.       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.”

 

23.       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.”

 

24.       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”.

25.       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.

26.       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.”

 

27.       Reading of ratio of the judgments referred to above, make 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).

28.       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. Consequently, the application under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996, filed by the Opposite Parties stands dismissed.

29.       As regards objection of the Opposite Parties that since the complainant, did not book the plot for his personal use but for investment/commercial purpose, he was not a consumer, it may be stated here that in the absence of any cogent documentary evidence, brought, on record, by the Opposite Parties, to the effect, that the complainant 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 complainant is a property dealer and is 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 complainant already owns a house in his name besides the plot, which is the subject matter of the instant complaint. The objection being devoid of merit, is rejected.

30.       The contention of the Opposite Parties that an Agreement for sale/purchase of a plot, cannot be treated as service and, therefore, the complainant is not a consumer, is also not on sound footing. It may be stated here, that it is not the case of the Opposite Parties that the complainant 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 unit, 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 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  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.

31.       The next question, which falls for consideration, is, as to whether the remedy of the complainant to seek refund after offer of possession by the Opposite Parties, vide letter dated 21.05.2015 (Annexure C-13) was barred. The Counsel for the Opposite Parties submitted that once the notice of possession was sent, the complainant could not seek refund. He relied upon Clause 11.3 of the Plot Buyer’s Agreement dated 02.08.2011, Annexure C-4, 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 complainant could exercise option of termination only up-till dispatch of the Notice of Possession by the Opposite Parties to him 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 2.8.2011, 42 months period i.e. 24 months + 6 months (grace period) + 12 months (extended delay period), expired on 1.2.2015. Possession was offered to the complainant vide letter dated 21.05.2015 (Annexure C-13) much after the expiry of period of 42 months. Whether mere offer of possession of plot, will disentitle the complainant, to claim refund of the amount deposited by him 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.”

32.       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.

33.       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 02.08.2011 i.e. date of signing of Buyer’s Agreement and even after expiry of extended delay period of 12 months, on 1.2.2015. The contention of the Opposite Parties that the complainant 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 1.2.2014, and even 12 months extended delay period expired on 1.2.2015. As a matter of fact, possession of the plot was offered only on 21.05.2015. 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 complainant is entitled to refund of amount/installments paid by him. In our opinion, Clause 11.1 cannot have overriding effect over Clause 11.3 of the Agreement. Thus, in our considered opinion, the complainant was 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. The authority relied upon by the Opposite Parties in Ashok Khanna Vs. Ghaziabad Development Authority, Revision Petition No.2002 of 2005, decided by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 18.08.2009, to contend that time is not the essence for handing over possession, is of no help to the Opposite Parties, the same being distinguishable on facts.

34.       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 21.05.2015 or not. It may be stated here that there is nothing, on the 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 2.08.2011, Annexure C-4, 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. The Opposite Parties in Paras 29 & 30 of their reply have stated that  they had nowhere said that the blacktopping of the internal roads would not be done by them and the work of black topping of the internal roads, had commenced. 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 would be taking up the STP installation work once there was adequate habitation as it is not necessary or required at the time of possession. We have carefully considered the above submissions. Even if the contention of the Opposite Parties that certain underground amenities have been provided and they would take up STP installation work after there was habitation, is accepted, 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 Annexure OP-17, validity of consent to establish NOC from Punjab Pollution Control Board stood expired on 13.05.2015, and the Opposite Parties had no validity of consent to establish, when possession was offered on 21.05.2015. The same was extended subsequently vide letter dated 29.06.2015 (Annexure OP-18). Final NOC was granted by PSPCL on 08.07.2015 (Annexure OP-15) after notice of possession dated 21.05.2015. Perusal of Annexure OP-16, which is memo dated 07.08.2015 from Punjab Electrical Inspectorate, brought on record, through Miscellaneous Application No.116 of 2015, reveals that installations were approved for commissioning only on 07.08.2015. Even letter dated 18.05.2015 (Annexure OP-22) 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. Certificates dated 5.8.2015 (Annexures OP-19 and 20), given by Sh. Dilip Kumar Solanki Sr. Vice President (Project Management) and Sh. Sukhwinder S. Bhatia, General Manager (Project Management), wherein these officials have stated 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; are 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 21.5.2015. It was obligatory on part of the Opposite Parties to handover possession to the complainant complete in all respects but they miserably failed to do so.

35.       Clearly development and amenities were not complete when possession was offered on 21.5.2015 even without complying with the provision contained in Clause 11.5 of Plot Buyer’s Agreement. While some of the approvals, as discussed above, were obtained after 21.5.2015, some of the amenities are yet to be completed. Thus, the offer of possession was not valid, legal and complete.

36.       The complainant has 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 5.6.2015 (Annexure C-16), on receipt of possession letter dated 21.5.2015 (Annexure C-13), the complainant expressed his concern about delay of the project. The contents of this email, being relevant are extracted hereunder:-

“Recently I got the possession letter for my plot:42 in your Ireo Hamlet project, Sector 98 Mohali. Thanks to IREO for that.

There were few concerns I would like to be addressed by you:

1. As we know the Project is delayed, as per allotment letter IREO is liable to pay 50 rs/sq.yd./month for the delay. I can not see that adjusted in the demand asked.
2. Kindly adjust the delay amount against the demand and resend the possession letter.
3. I visited the site and the internal roads and connecting main road is not yet complete. I consider possession letter shall be asked after completion of the project. If I am paying the full amount I expect the project to be completed in all respects.
4. I do not agree with third TRIPARTITE MAINTENANCE AGREEMENT sent along with possession letter. Kindly suggest alternatives.
5. It is a plot and not a flat where I can start living right after possession so maintenance charging start date should start after certain period so I can build house and then only the maintenance should be charged.

Also please confirm that there will be no monthly maintenance charges for the tenure 3-5 years as mentioned on call by your representative.

Additionally that Interest Free Maintenance Security (IFMS) will not be asked other that paid already.

Please consider that I expect the project to be completed in all respects before possession letter including connecting and internal roads. Please provide the complete details of what has been completed and what all is pending in the project.

Note: Kindly revert with 5 days from the receipt of this mail so I shall arrange demanded funds by time. In case of delay in response, please adjust the final payment date accordingly.”

37.       Though it is evident from Memo No.5001 dated 7.8.2015 (Annexure OP-16), 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 21.5.2015.

38.       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-15), after offer of possession on 21.5.2015. 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 complainant. Thus, since the Opposite Parties failed to handover legal and valid possession of the plot, in question, to the complainant, 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 complainant was entitled to seek refund.

39.       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 21.5.2015 when offer of possession was made. Thus, the contention of the complainant 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 complainant, before completing the basic amenities as also without obtaining the necessary sanctions/approvals.

40.       In our considered opinion, provision of 12 months extended delay period in Clauses 11.2 and 11.3 operates very harshly against the complainant. The Opposite Parties have in a very unreasonable manner gained 12 months time to offer possession and relief admissible to the complainant is negligible. The plot, in question, measurers 251.51 sq. yards and @Rs.50/- per sq. yard, the compensation amount works out to Rs.12,575/- per month. The complainant in                  all paid an amount of Rs.59,04,247.90Ps and               this per month compensation for the delayed period        is not even equivalent to simple per annum interest on 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 complainant, virtually, no benefit accrued to the complainant for the extended delay period. On the other hand, the Opposite Parties charged 15% interest from the complainant in default of any installment due, in terms of Clause 7.2 of the Plot Buyer’s Agreement.       

41.       The next question, which falls for consideration, is, as to whether, in the circumstances, referred to above, the complainant is entitled to refund of the amount deposited by him 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 21.05.2015 (Annexure C-13) 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 2.8.2011 (Annexure C-4), the complainant is definitely entitled to the refund of amount of Rs.59,40,247.00Ps deposited by him with the Opposite Parties. No doubt, Clause 20.1 of Plot Buyer’s Agreement dated 2.8.2011 provides interest @7.5% in such a situation, but considering the period the hard earned money of the complainant 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.59,40,247.90Ps alongwith compound interest quarterly @12% from the respective dates of deposit shall meet the ends of justice.

42.       The next question, which falls for consideration, is, as to whether, the complainant is entitled to any compensation or not. The complainant deposited his hard earned money, in the hope that he will have a house to live in. The Plot Buyer’s Agreement was executed on 2.8.2011. 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, meaning thereby that for almost two years, the process of development did not start. On account of non-delivery of legal physical possession of the plot, in question, complete in all respects, by the Opposite Parties, to the complainant, and, on the other hand, by offering only a paper possession and not refunding the amount deposited, he (complainant) had certainly suffered immense physical harassment and mental agony, and the Opposite Parties were certainly deficient in rendering service and indulged into unfair trade practices, for which, he (complainant) needs to be suitably compensated. In our considered opinion, compensation in the sum of Rs.2,00,000/- would be just and adequate, to meet the ends of justice. However, in the second complaint No.133 of 2015, where the complainant deposited a total sum of Rs.73,86,223.96Ps, Rs.2,50,000/- is awarded as compensation.          

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

44.        For the reasons, recorded above, both the complaints bearing No.132 of 2015 and 133 of 2015 are partly accepted, with costs, and the Opposite Parties are jointly and severally, held liable and directed in the following manner:-

Complaint Case No.132 of 2015

(i)   To refund the amount of Rs.59,04,247.90Ps, to   the   complainant,   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.2,00,000/-  (Rupees        Two Lac only), to the complainant, 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) To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant.

 (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/-.

Complaint Case No.133 of 2015

(i)   To refund the amount of Rs.73,86,223.96Ps, to the complainant, 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.2,50,000/-  (Rupees        Two Lac and Fifty Thousand only), to the complainant, 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) To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant.

 (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/-.

45.       Certified copy of this order be placed in Consumer Complaint No.133 of 2015.

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

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

Pronounced

October 26, 2015.

 

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

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