Chandigarh

StateCommission

CC/256/2016

Ms. Ruble Goyal - Complainant(s)

Versus

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

Navneet Jindal, Adv.

15 Nov 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	256 of 2016
Date of Institution	:	07.06.2016
Date of Decision	:	15.11.2016

 

Ms. Rubel Goyal W/o Sh. Anuj Gupta R/o House No.A-404, GH-5, Sanskriti Apartments, Sector 43, Gurgaon, Haryana.

 

……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/Authorised 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/Authorised Signatory.

….Opposite Parties.

                

Argued by:

 

Sh. Navneet Jindal, Advocate for the complainant.

Sh. Ramnik Gupta, Advocate for the Opposite Parties.

 

Consumer Complaint	:	277 of 2016
Date of Institution	:	20.06.2016
Date of Decision	:	15.11.2016

 

Gautam Prabhakar son of Dr. S. R. Prabhakar aged 39 years resident of House No.1123, Sector 43-B, Chandigarh.

 

……Complainant.

Versus

1. M/s Puma Realtors Pvt. Ltd., a company incorporated under the Companies Act, 1956 (an IREO Group Company) having its corporate office at SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh – 160 009 (India) through its Director.
2. M/s Puma Realtors Pvt. Ltd., a company incorporated under the Companies Act, 1956 (an IREO Group Company) having its Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi – 110 074 through its Managing Director.

 

….Opposite Parties.

 

Argued by:

 

Sh. Shashi Bhushan Gautam, Advocate for the complainant.

Sh. Ramnik Gupta, Advocate for the Opposite Parties.

 

 

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

 

 

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

                SH. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

PER DEV RAJ, MEMBER

             By this order, we propose to dispose of, following two consumer complaints:-

1	CC/256/2016	Ms. Ruble Goyal	Vs	M/s Puma Realtors Private Ltd. & Anr.
2	CC/277/2016	Sh. Gautam Prabhakar	Vs	M/s Puma Realtors Private Ltd. & Anr.

 

2.          Since the facts involved in the above two complaints, by and large, are the same, as they relate to the same project, namely, “Ireo Hemlet”, therefore, these complaints are being disposed of, by passing one consolidated order.

3.          Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.256 of 2016, titled as ‘Ms. Ruble Goyal Vs. M/s Puma Realtors Private Limited and another.’

4.            The facts, in brief, are that one Sh. Jitender Singh Dhatarwal applied for a residential plot in the project of the Opposite Parties, namely ‘IREO Hamlet’, Sector 98, Mohali, Punjab and he was allotted Plot No.18 measuring 250 Sq. yards in the said project. Plot Buyer’s Agreement dated 26.07.2011 was executed between Sh. Jitender Singh Dhatarwal and the Opposite Parties at Chandigarh (Annexure C-1). Thereafter, the Opposite Parties changed the payment plan vide letter dated 26.09.2011 (Annexure C-3) from Time Linked Payment Plan to Development Linked Payment Plan. Subsequently, the said plot was purchased by the complainant from Sh. Jitender Singh Dhatarwal, which was transferred in her name vide letter dated 14^th March 2012 (Annexure C-2). The Opposite Parties took Rs.28,16,018/- before start of any development of site and Rs.9,07,574/- was to be paid within three months of commencement of development.

5.            The complainant paid every installment from time to time and also paid Rs.2,365/- as delayed interest @15% p.a. on amount of Rs.4,79,612/-, which was delayed by 12 days.

6.            It was further stated that as per Clauses 11.1 and 11.2 of the Agreement, the Opposite Parties were to hand over possession within 24 months plus 6 months grace period, from the date of execution of the Agreement. It was further stated that even after expiry of grace period of 6 months, the Opposite Parties were having 12 months extended period for handing over possession, which expired on 26.01.2015. It was further stated that the complainant was entitled to delayed compensation as per clause 11.2 of the Agreement. It was further stated that the   complainant   received   possession   letter   dated

04.05.2015 (Annexure C-7) alongwith MSA etc., calling for the payment. It was further stated that the complainant visited the site in May, 2015 and shocked to see that there was nothing in the name of development at the site. It was further stated that no pucca roads existed, no sewer lines laid and no transformers installed. It was further stated that no lawful/legal possession has been handed over till date, which meant that the Opposite Parties are not in position to fulfill their own agreement. It was further stated that notice of possession was to be followed by demarcation, which was to be done in the presence of the complainant after due notice, which was never done. It was further stated that letter of possession was sent in complete derogation of the Agreement and hence, nothing but a mere piece of paper. On getting no response, the complainant asked the Opposite Parties to refund the amount paid by her but to no avail. However, she received letter dated 29.06.2015 (Annexure C-8) detailing progress, as per which, the project was not complete, the development work was in progress and the facilities such as internal roads etc. were still not complete. Not only this, as per the complainant, it also came to her 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 further stated that no document has been shown to the complainant relating to approved load, approval for domestic affluent disposal and approval for water access to the colony. The complainant sent letter to the Company on 01.03.2016 recalling the payment made by it alongwith interest. The complainant also sent legal notices to both the Opposite Parties. It was further stated that the complainant, in all, paid an amount of Rs.60,22,471/- to the Opposite Parties. It was further stated that the acts of the Opposite Parties amounted to deficiency, in rendering service and indulgence into unfair trade practice.

7.          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.60,22,471.66 alongwith up-to-date interest @15%, (as was charged by the Opposite Parties in default), from the respective dates of deposits, Rs.5,00,000/- as compensation on account of mental agony & physical harassment and Rs.1,00,000/- as cost of litigation.

8.          The Opposite Parties, in their joint 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 26.07.2011; that the complainant did not book the plot for her personal use but for investment/commercial purpose; that since the present complaint related to an agreement to sell/purchase of a plot i.e. an immovable property, therefore, the same is not covered under 1986 Act and further, since the complainant sought enforcement of the Agreement, only a Civil Court has the jurisdiction, and as such, consumer complaint was not maintainable; that this Commission has no territorial jurisdiction on account of existence of Clause 35 in the Agreement and that the relief claimed is beyond Section 14(1)(d) of the  1986 Act. 

9.          On merits, it was stated that the complainant never applied with the Opposite Parties for allotment of residential plot but she of her own purchased the allotment rights of the plot, in question, from one Sh. Jitender Singh Dhatarwal, the original allottee, in February/March 2012. It was further stated that the documents were endorsed in favour of the complainant on 14.03.2012. It was further stated that it was not agreed that possession was to be offered after expiry of 42 months from the date of Agreement. On the contrary, it was agreed vide Clause 11.1 of the Agreement that the original allottee or the complainant shall punctually pay the due installments in time and further, if the Opposite Parties failed to offer possession on expiry of grace period (30 months), the Opposite Parties shall be liable to pay compensation @50/- per sq. yard per month till actual date fixed for handing over of possession. It was further stated that the complainant never opted for termination of allotment before dispatch of notice of possession dated 04.05.2015. It was further stated that the possession offered vide letter dated 04.05.2015 was duly received by the complainant. It was further stated that the complainant never paid the due installment payable on the offer of possession nor had come forward for taking the possession of the plot, in question. It was further stated that the complainant except sending notice dated 01.03.2016 had never contacted or inquired about the development, sanctions/approvals, basic amenities or the possession from the Opposite Parties. It was further stated that even the report of Local Commissioner filed in complaint titled ‘Abha Arora Vs. PUMA Realtors Pvt. Ltd. and another’, bearing No.170 of 2015, clearly unveils the false allegations made by the complainant.

10.        It was further stated that the Opposite Parties have been granted exemption from all the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short ‘PAPRA 1995’) by the competent authorities vide notification dated 14.08.2008 and the Opposite Parties were/are not under any obligation to obtain the completion certificate under PAPRA 1995. It was further stated that the Opposite Parties have been granted all the necessary approvals and necessary permissions to sell, develop and offer the possession of the plot to the allottees. It was further stated that the Opposite Parties were also granted various sanctions/approvals from the competent authorities. It was further stated that NOC for withdrawal of ground water was granted on 19.08.2011, environmental clearance was granted on 30.11.2012; NOC by Punjab Pollution Control Board was granted on 14.05.2013, which was then extended vide letters dated 09.12.2014, 29.06.2015 and 20.07.2016; service plans were approved on 18.05.2015; NOC by PSPCL was granted on 08.07.2015; approval for commissioning of electrical installation was accorded on 07.08.2015; consent to operate was granted by Punjab Pollution Control Board on 05.01.2016 and Bank Guarantee was submitted to PSPCL on 22.03.2016. It was further stated that the complainant for her own benefit was mis-interpreting the letter dated 29.06.2015 and the same could, in no terms, render the notice of possession as unlawful or illegal. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

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

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

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

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

15.        It is evident, on record, that Plot No.18 in the residential project “IREO Hamlet” admeasuring 250.59 sq. yard, Sector 98, SAS Nagar, Mohali, was allotted to Sh. Jitender Singh Dhatarwal, basic sale price whereof was Rs.23,000/- per sq. yard besides External Development Charges (EDC) @Rs.1,275.10 per sq. yard, Preferential Location Charges (PLC) @Rs.500/- per sq. yard, and IFMS charges @Rs.350/- per sq. yard. Admittedly, Plot Buyer’s Agreement was executed between Sh. Jitender Singh Dhatarwal and the Opposite Parties on 26.07.2011 (Annexure C-1) at Chandigarh. The payment against the aforesaid plot was to be regulated as per payment plan, Annexure I (at Page 47 of the file). Thereafter, onward rights/obligations with respect to the said plot were assigned in the name of the complainant vide letter dated 14.03.2012 (Annexure C-2) and endorsement in favour of the complainant was also made. Against the total price of the plot including External Development Charges, Preferential Location Charges and IFMS Charges, the complainant made payment in the sum of Rs.60,22,471.66. Vide letter dated 26.09.2011 (Annexure C-3), the Opposite Parties offered change of Payment Plan from “Time Linked Payment Plan” to “Development Linked Payment Plan”, which was duly accepted by the original allottee and payments of due installments, as per changed plan, were made. The possession was offered on 04.05.2015 i.e. before filing of the present complaint on 07.06.2016. The case of complainant is that possession offered was without development of the site and basic amenities.

16.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration  clause in the Agreement, to settle disputes between the          parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in Consumer Complaint No.213 of 2016 titled ‘Gobind Paul Vs. Emaar MGF Land Limited & Another’ decided on 16.08.2016. Paras 8 to 15 of the said order, inter-alia, being relevant, are extracted hereunder:-

                    “8……….To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

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

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

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

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

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

9.                 Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

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

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

 

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

 

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

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

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

14.               The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the unit, in the said project, launched by the opposite parties. However, his hopes were shattered, when despite making substantial payment of the sale consideration, they failed to get possession of the unit, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

15.               Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.””

17.        In view of the above, the objection raised by Counsel for the Opposite Parties that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.

18.        To defeat claim of the complainant, the next objection raised by the Opposite Parties was that since the complainant had purchased the plot, in question, from the original allottee, for investment/commercial purpose i.e. for resale, as and when there was escalation in the prices of real estate, as such, she would not fall within the definition of consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. Moreover, the complainant in Para 2 of the complaint has stated that she purchased the residential plot, in question, for her own use and occupation after constructing house thereon. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. It may be stated here that in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited”, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

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

 

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

19.        Another objection raised by Counsel for the Opposite Parties was that since the complainant did not buy goods and did not hire any services, and was seeking enforcement of the Agreement in respect of immovable property, therefore, only a Civil Court can decide the complaint, and consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the opposite parties, for purchasing the plot, in question, in the manner, referred to above. According to Clause 11.1 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver physical possession of the unit, within a period of 30 months i.e. (24 months + 6 months grace period), from the date of execution of the same (Agreement), with complete basic amenities, as provided in Clause 21.2. Section 2 (1) (o) of the Act, defines service as under:-

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

 

 

 

 

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

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

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

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

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

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

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

It may be stated here that, for determining the territorial jurisdiction, to entertain and decide the complaint, the  Consumer Foras are bound by  the provisions of Section 11 of the Act.  In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors.-I (2008) CPJ 404 (NC), the principle of law, laid down,  by the National Commission, was to the effect, that a clause of jurisdiction, by way of an agreement, between the parties, could not be made applicable, to the consumer complaints, filed before the Consumer Foras, as the Foras are not  the Courts.  It was further held, in the said case, that there is a difference between Section 11 of the Act, and the provisions of  Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. Further, in Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)=VII (2011) SLT 371,  the principle  of law, laid down was   that the restriction of jurisdiction to a particular Court, need not be given any importance in the   circumstances of the case.  In Cosmos Infra Engineering  India  Ltd. Vs Sameer Saksena & another I (2013) CPJ31 (NC) and  Radiant Infosystem Pvt. Ltd. & Others Vs D. Adhilakshmi & Anr., I (2013) CPJ 169 (NC) the  agreements were executed, between the parties, incorporating therein, a condition, excluding the jurisdiction of any other Court/Forum,  in case of dispute, arising under the same, and limiting the jurisdiction of the Courts/Forums at Delhi and Hyderabad.  The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the jurisdiction of a particular Court/Forum, and limiting the jurisdiction of a particular Court/Forum, could not be given any importance and the complaint could be filed, at a place, where a part of cause of action arose, according to Section 11 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case.  At the same time, it is also held in the face of case Ethiopian Airlines Vs Ganesh Narain Saboo’s (supra), decided by the Supreme Court of India, the judgment titled as M/s Taneja Developers and Infrastructure Limited Vs. Gurpreet Singh and another, First Appeal No.33 of 2014, decided on 25.02.2016, by the National Commission, reliance whereupon has been placed by Counsel for the opposite parties, to support his contention, that this Commission has no territorial jurisdiction, shall not hold the field. In these circumstances, such a Clause contained in the Agreement, therefore, could not   exclude the jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainant, to file the complaint. The objection taken by the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.”

 

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

23.       The next question, which falls for consideration, is, as to whether the possession offered vide letter dated 04.05.2015 (Annexure C-7) was complete and proper or not. The Counsel for the complainant submitted that possession of the plot, in question, offered vide letter dated 04.05.2015 was not legal and proper and there was no development at the site.     

24.       The complainant has challenged the offer of possession dated 04.05.2015 by filing the instant complaint for lack of development at the site. It has been stated in the complaint that she visited the spot in May 2015 and found that there was no development at the site, which was to be done by the opposite parties by laying Roads, Water Lines, Sewer Lines, Electrical Lines etc. No doubt, nothing by way of evidence has been placed, on record, but apparently there was promise to make development and then offer/hand over possession of the plot, to the complainant. From letter dated 29.06.2015 of the Opposite Parties (Annexure C-8), sent to the complainant, after offer of possession letter dated 04.05.2015, it is clear that following amenities were yet to be completed:-

• Internal roads not complete as it could be damaged on account of movement of trucks carrying heavy construction material.
• We are in process of completing the balance blacktopping work also.
• The work of roads would be taken up after considerable number of houses are constructed by the allottees.
• Only temporary electricity connection would be made available.
• External roads, networks and infrastructure are the responsibility of Government and the opposite parties are following up with the Government to do so.
• Sewerage treatment plant has not been constructed and will be taken when there is adequate habitation.
• For construction purpose water can be purchased from any authorised vendor permitted by Panchayat, Irrigation department, GMADA etc. 
• Features like swings etc. shall be provided in due course of time.

It has been admitted by the Opposite Parties in their written statement that the aforesaid letter was sent to the complainant informing her about status of development. Thus, the averment of the complainant that the basic amenities like roads and sewerage were not complete/developed at the site, stands corroborated.

25.        The Opposite Parties were, thus, duty bound to provide all basic facilities like roads, sewerage, drinking water, electricity, street lights, drainage etc. There is nothing, on record, that complete development, in respect of the plot, in question, and amenities at the site as promised, as per the Agreement, were available at the site. It may be stated here that certain approvals such as electrical installations, NOC subject to making arrangements for suitable provision for drinking water supply and safe disposal of sullage/storm discharge and sold waste management, are inter-linked with development and basic amenities. The fact that certain amenities and approvals were complete/obtained after offer of possession, clearly proves deficiency of the Opposite Parties, as is evident from the position indicated hereinafter.

26.       In Memo No.5001 dated 7.8.2015 (Annexure OP-17), which is letter from the Chief Electrical Inspector to Govt. Punjab, Patiala, to M/s IREO Hamlet (Residential Township), Sector 98, Mohali, it is stated that inspection of subject cited electrical installation was carried out by the Electrical Inspectorate 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 vide letter dated 04.05.2015.

27.       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-16), after offer of possession on 04.05.2015. In letter dated 18.05.2015 (Annexure OP-15), which is after offer of possession on 04.05.2015, addressed to the Opposite Parties, Greater Mohali Area Development Authority (GMADA) clearly informed them (Opposite Parties) that arrangements for suitable provision for drinking water supply and safe disposal of sullage/storm discharge and solid waste management shall be made by the Opposite Parties at their level separately and they shall obtain all necessary approvals from the concerned Authorities as per law in this regard independently. It was further stipulated that the construction work was to commence only after obtaining approvals as per law from the concerned Authorities. As per aforesaid letter, number of conditions were required to be complied with by the Opposite Parties. Nothing has been placed on record to the effect that the Opposite Parties complied with those conditions. Further, consent to operate an outlet for discharge of the effluent u/s 25/26 of Water (Prevention & Control of Pollution) Act, 1974 was granted to the Opposite Parties vide letter dated 05.01.2016 (Annexure OP-18) i.e. after offer of possession. It may also be stated here that the Opposite Parties furnished Bank Guarantee dated 22.03.2016 (Annexure OP-19) with expiry date/claim expiry date as 21.03.2021 in the sum of Rs.3,24,10,301/- to the PSPCL, after offer of possession. As such, the Opposite Parties had neither completed the development nor did they have all the necessary sanctions/approvals from the Competent Authorities up-till 04.05.2016 when offer of possession was made. The contention of the complainant that possession offered was not a valid and proper possession is, thus, 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 development as also without obtaining the necessary approvals.

28.          The next question which falls for consideration, is, whether the complainant is entitled to refund of the entire amount deposited by her. It may be stated here that Plot Buyer’s Agreement was entered into between the parties on 26.07.2011. As per Clause 11.1 of General Clauses of the Agreement, possession of the plot, in question, was to be handed over within 24 months from the date of execution of the said Agreement with further grace period of 6 months but not later than 30 months i.e. latest by 26.01.2014. Further, as per Clause 11.2 of the Agreement, in case, possession was not offered within the stipulated period, then the Opposite Parties were liable to pay compensation calculated @Rs.50/- per sq. yard of the area every month until possession is actually handed over. Clauses 11.1 and 11.2 of the Plot Buyer’s Agreement dated 26.07.2011, being relevant, are extracted hereunder:-

“11.1 - Subject to Force Majeure, as defined herein, and further subject to the Allottee having complied with all its obligations under the terms and conditions of this Agreement, and not being in default of any provision(s) of this Agreement including but not limited to the timely payment of all dues and charges including the total Sale Consideration, registration charges, stamp duty and other charges, and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to hand over the possession of the said Plot to the Allottee within a period of 24 (Twenty Four) months from the date of execution of this Agreement (“Commitment Period”). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 6 (Six) months (“Grace Period”), after the expiry of the said Commitment Period.

11.2-Subject to Clause 11.1, if the Company fails to offer possession of the said Plot to the Allottee by the end of the Grace Period, it shall be liable to pay to the Allottee compensation calculated at the rate of Rs.50/- (Rupees Fifty only) per sq. yd. of the area of the said Plot (“Delay Compensation”) for every month of delay until the actual date fixed by the Company for handing over of possession of the said Plot to the Allottee. The Allottee shall be entitled to payment against such ‘Delay Compensation’ only after completion of all documentation including registration of the Conveyance Deed”.

29.        Since the Plot Buyer’s Agreement was executed on 26.07.2011, 30 months period including 6 months grace period expired on 26.01.2014. Even the extended period of 12 months, in terms of Clause 11.3 of the Agreement expired on 25.01.2015. Admittedly, possession of the unit, in question, offered to the complainant vide letter dated 04.05.2015 (Annexure C-7) was a paper possession only. The total price of the unit was Rs.63,07,713.66 and the complainant had made payments in the sum of Rs.60,22,471.66, which was undoubtedly her hard earned money. No plausible reason has been assigned by the opposite parties, as to why they (Opposite Parties) failed to deliver complete possession of the unit, by the date stipulated. Delay could only be condoned, under the terms and conditions of the Agreement, if there existed plausible and justified reasons. Clearly, there is delay in handing over of possession. It may be stated here that offer sent vide letter dated 04.05.2015, has been held to be a mere paper possession. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon’ble National Commission, held as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the  complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the  complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), 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. 

30.       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 26.07.2011 i.e. date of signing of Buyer’s Agreement and even after expiry of extended delay period of 12 months, on 25.01.2015. 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….”. Since the Opposite Parties failed to hand over valid possession of the plot, in question, with complete development and all basic amenities, 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. Thus, in our considered opinion, the complainant is entitled to refund of the deposited amount. By not offering possession of the unit, in question, within the stipulated period and during extended delay period and by not refunding the deposited amount, the Opposite Parties were deficient in rendering service.

31.        It is to be further seen, as to whether, interest, on the amount to be refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.60,22,471.66 was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). Since the complainant purchased the unit, in question, from the original allottee on 14.03.2012, it is to be seen as to from which date, she is entitled to interest. A similar issue came up for consideration before this Commission in Darbara Singh and ors. Vs. Emaar MGF Land Limited and Ors., Complaint Case No.147 of 2016 decided on 22.08.2016. In that case, this Commission granted interest to the complainant from the date of endorsement of the unit as he was subsequent purchaser of the unit. Since in this case also, the complainant is not the original allottee and rights in her favour were assigned on 14.03.2012, on the basis of ratio of judgment in Darbara Singh and ors. Vs. Emaar MGF Land Limited and Ors. (supra), she (complainant) is entitled to refund of Rs.60,22,471.66 alongwith interest compounded quarterly @12% (less than the rate of interest charged by the Opposite Parties, in case of delayed payment), till realization. However, since rights in the plot were assigned in favour of the complainant on 14.03.2012, on the amount(s) paid by the previous allottee upto 14.03.2012, interest shall be payable w.e.f. 14.03.2012, and on the amount(s) paid from 14.03.2012 onwards, interest @12% compounded quarterly from the respective dates of deposits.

32.        In view of aforesaid position, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her, as also escalation in prices. Compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.2,50,000/-, if granted, would be adequate to meet the ends of justice.

33.        In Complaint No.277 of 2016, the Plot Buyer’s Agreement was executed between the complainant, namely, Sh. Gautam Prabhakar and the Opposite Parties on 26.08.2011 at Chandigarh. Possession of the plot, in question, was offered to the complainant vide letter dated 06.05.2015 (Annexures C-17/ OP-3).

34.        Vide email dated 12.05.2015 (Annexure C-18), which is extracted hereunder, the complainant sought the following information from the Opposite Parties:-

“I have got the final payment (possession) letter for the plot that I hold your compay:

Before making the final payment, I would like to know the foll things:

• By when can registration for the said plot (Plot no.244) happen?
• Is the completion/occupancy certificate in place.
• What is the provision of water connection, electricity and sewerage connection?
• Is the transformer installed and what is the load sanctioned for my plot.

I would also like you to organize a site visit for me on this Sat (12 noon onwards) along with project manager/head who can attend to my queries.

Pl do revert on each point raised by me so that I can make my payment on time.”

35.        Subsequently, vide email dated 19.05.2015 (Annexure C-19), the Opposite Parties while replying to the aforesaid email (Annexure C-18), stated, interalia, as under:-

“Pls find enclosed pointwise reply to all your queries:

By when can registration for the said plot (Plot No.244) happen? We shall proceed for execution and registration of conveyance deed and the handing over of possession only after fulfillment by you of all the pre-conditions as set out in the Notice of Possession including payment of outstanding amounts.

Is the completion/occupancy certificate in place. - Please note that we have obtained the approvals for the service drawings/plans, zoning plans from the concerned authorities which are the only requisites at this stage for us to handover possession. Completion certificate/partial completion certificate is not required to be obtained by us at this stage.

What is the provision of water connection, electricity and sewerage connection? All service connection from nearest feeder pillar/house connection chamber/manhole for electrical, water, storm, sewer connection shall be responsibility of the buyer. Infrastructure services pipeline/ connections have already been laid at the site.

Is the transformer installed and what is the load sanctioned for my plot. - Electrical transformers have been installed at the site. The approved sanction load based on your plot size is 10 KW…..”

36.        Subsequently, vide letter dated 02.12.2015    (Ann. OP-4), the complainant wrote to the Opposite Parties    that he was ready and  willing to get the conveyance    deed executed and registered in respect of Plot No.244, IREO Hamlet, Sector 98, SAS Nagar (Mohali), Punjab. He also stated that he had already made 100% payment of the sale consideration and requested for payment of delayed compensation, if any. He further stated that if the company could bear the cost of stamp duty on the sale consideration, registration charges and incidental expenses for execution and registration of the conveyance deed in his favour, that would help him in planning early start of construction on the said plot. The complainant, in this letter, also specifically stated as under:-

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

 

The complainant in his complaint alleged deficiency in development/construction of roads and amenities like sewerage, storm water, drainage lines, electricity supply on the basis of documents pertaining to July 2015 (Annexure C-22), 30.06.2015 (Annexure C-23), 16.03.2015 (Annexure C-24), 20.07.2015 (Annexure C-25) and his visit to the site during December 2014 and February 2015 as stated in Para 12 of the complaint. Since the afore-extracted statement of the complainant was made afterwards in letter dated 02.12.2015, his averment that there was no development at the project site, in view of his above extracted statement, is clearly afterthought and, thus, not tenable.

37.        Thereafter, the Opposite Parties vide email dated 18.01.2016 (Annexure OP-5) informed the complainant as under:-

“Although already communicated, nonetheless, we once again reiterate that the stamp duty and registration charges for execution and registration of Conveyance Deed for Plot No.244 shall be borne by the Company.

 

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

 

Therefore, we shall inform you in due course of time, the date and time for execution of Conveyance Deed for your plot, in advance.”

 

38.        The Opposite Parties vide its letter dated 28.04.2016 (Annexure OP-6) again confirmed that stamp duty and registration charges for execution and registration of conveyance deed for Plot No.244 shall be borne by the Company. The Opposite Parties promised to inform the complainant in due course of time, the date and time for execution of Conveyance Deed.

39.        When the Opposite Parties failed to do the needful, the complainant filed the instant complaint on 20.06.2016 seeking refund of the entire amount of Rs.63,59,432/- paid by him to the Opposite Parties alongwith interest as prevailing in the market. The deficiency on the part of the Opposite Party is clear from the evidence on record. Since the Opposite Parties failed to deliver the possession within the period stipulated in the Plot Buyer’s Agreement and also failed to abide by their commitment as made vide email dated 18.01.2016 (Annexure OP-5) and letter dated 28.04.2016 (Annexure OP-6) to get the execution and registration of the Conveyance Deed, despite receiving full payment from the complainant, the complainant has a right to seek refund of the deposited amount. In view of ratio of judgment in Emaar MGF Land Limited and another Vs. Dilshad Gill (supra), the complainant is, held entitled to refund of the deposited amount. The complainant in Para 23 of his complaint, has referred to and relied upon Clause 20.1 of the Agreement, which provides for refund alongwith interest @7.5% p.a. excluding interest or penalty paid/payable by the allottee on any delayed payment but in the prayer clause, he has sought refund of the deposited amount alongwith interest at the rate prevailing in the market. The Opposite Parties in their written statement have stated that Clause 20.1 is not applicable. This Commission in cases pertaining to this project has been granting interest @12% compounded quarterly. In our opinion, when the deficiency on the part of the Opposite Parties is clearly evident, grant of refund alongwith interest @7.5% shall be on the lower side. In the facts and circumstances of the case, refund of the deposited amount alongwith interest @9.15% p.a. (simple) [rate at which the financial institutions lend loans] shall serve the ends of justice. In this case also, the complainant is held entitled to compensation in the sum of Rs.2,50,000/- for mental agony, physical harassment and deficiency in providing service.

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

41.         For the reasons, recorded above, both the complaints bearing Nos.256 of 2016 and 277 of 2016 are partly accepted, with costs.

 

Complaint No.256 of 2016 titled ‘ Rubel Goyal Vs. M/s Puma Realtors Private Limited & Anr’.

 

 

             The Opposite Parties are, jointly and severally, held liable and directed in the following manner:-

(i)    To refund the amount of Rs.60,22,471.66, to   the   complainant, alongwith interest @12% compounded quarterly, with effect from 14.03.2012 for the amount(s) paid uptil 14.03.2012 and from the respective dates of deposits, in respect of payments made w.e.f. 14.03.2012 onwards, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)   To pay an amount of Rs.2,50,000/- (Rupees Two Lacs and Fifty thousand only), as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order.

(iii)  In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% compounded quarterly, from the date of default, till realization and amount(s) mentioned in Clause (ii) above, with interest @12% (simple) from the date of filing the complaint till realization.

 

Complaint No.277 of 2016 titled ‘Gautam Prabhakar Vs. M/s Puma Realtors Private Limited & Anr’.

 

 

             The Opposite Parties are, jointly and severally, held liable and directed in the following manner:-

(i)    To refund an amount of Rs.63,59,432/-, to   the   complainant, alongwith simple interest @9.15% p.a., with effect from the dates of respective deposits, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)   To pay an amount of Rs.2,50,000/- (Rupees Two Lacs and Fifty thousand only), as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order.

(iii)  In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with simple interest @12% p.a., from the date of default, till realization and amount(s) mentioned in Clause (ii) above, with simple interest @9.15% p.a. from the date of filing the complaint till realization.

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

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

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

Pronounced.

15.11.2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

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