Chandigarh

StateCommission

CC/645/2016

Dr. Gurinder Singh Bholla - Complainant(s)

Versus

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

Sahil Khunder, Adv.

09 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	645 of 2016
Date of Institution	:	28.09.2016
Date of Decision	:	09.03.2017

 

Dr. Gurinder Singh Bholla s/o Manmohan Singh Bholla, H.No.3580, Tej Mohan Nagar, Jalandhar presently residing at 78 Chhoti Baradari II, Jalandhar.

 

……Complainant.

 

Versus

 

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

 

….Opposite Party.

Argued by:

 

Sh. Sahil Khunger, Advocate for the complainant.

Sh. Ramnik Gupta, Advocate for the Opposite Party.

 

Consumer Complaint	:	702 of 2016
Date of Institution	:	17.10.2016
Date of Decision	:	09.03.2017

 

1. Rajinder Chaudhary son of Sh. Jagan Nath Chaudhary,
2. Yogesh Chaudhary son of Sh. Rajinder Chaudhary,
3. Rahul Chaudhary son of Sh. Rajinder Chaudhary,

All residents of #53-A, Dashmesh Colony, Rajpura, Punjab 140-401.

……Complainants.

Versus

 

1. M/s PUMA Realtors Private Ltd., having its registered office at No.5, Dhanraj Chambers, First Floor, Satbari, New Delhi 110-074 through its Managing Director.
2. M/s PUMA Realtors Private Limited having its corporate office at SCO 6-7-8, Second Floor, Sector 9-D, Madhya Marg, Chandigarh 1600-009 through its Branch Manager.

….Opposite Parties.

Argued by:

 

Sh. Harsh Garg, Advocate for the complainants.

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.

 

PER DEV RAJ, MEMBER

             The facts, in brief, are that being allured by the assurances made by the Opposite Party, the complainant applied for a plot measuring 237.41 sq. yard in the project of the Opposite Party, namely, “IREO Hamlet”, and initially deposited Rs.6,50,000/- vide receipt dated 26.04.2011 (Annexure C-1). He was allotted Plot No.318 measuring 237.41 sq. yard in the said project vide allotment letter dated 29.04.2011 (Annexure C-2). Plot Buyer’s Agreement was executed between the complainant and the Opposite Party on 04.08.2011 (Annexure C-3). The Opposite Party later changed the payment plan opted by the complainant to development linked payment plan. The total cost of the plot was fixed at Rs.59,64,949.99. The complainant paid a total sum of Rs.26,71,574/- to the Opposite Party as per demands raised from time to time.

2.          It was further stated that to the utter surprise of the complainant, the Opposite Party feloniously cancelled the plot without the consent or knowledge of the complainant and also did not bother to inform the complainant. Subsequently, the complainant wrote email dated 21.03.2015 (Annexure C-4) to the Opposite Party to immediately give possession alongwith penalty for delay alongwith interest or refund the money paid. The complainant further sent emails dated 30.03.2015 and 18.05.2015 (Annexures C-5 & C-6) to the Opposite Party. Thereafter, vide its email dated 16.06.2015 (Annexure C-7) , the Opposite Party informed the complainant that his request is under consideration and the Opposite Party would get back within some time. Thereafter, the complainant wrote various emails to the Opposite Parties but to no avail. However, on 17.07.2015, the Opposite Parties again reiterated the same version (Annexure C-8 colly). It was further stated that when a representative of the complainant visited the office of the Opposite Party, it was assured that refund would be made to the complainant latest by 15.10.2015 but nothing was done. It was further stated that the complainant again wrote emails dated 24.11.2015 and 30.11.2015 (Annexures C-9 & C-10) to the Opposite Party but to no avail. 

3.          It was further stated that vide email dated 25.02.2016 (Annexure C-11), the Opposite Party confirmed the request of the complainant for refund and informed that his request was under consideration and refund would be made on or before 31.03.2016. When refund was not made by the stipulated date, the complainant again wrote emails dated 12.04.2016, 08.06.2016 and 06.07.2016 (Annexures C-12, C-13 & C-14) to the Opposite Party. Lastly, the complainant sent a legal notice dated 29.07.2016 (Annexure C-15) to the Opposite Party, which was not replied.

4.          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.26,71,574/- alongwith interest @18% per annum; Rs.5,00,000/- as compensation for mental agony and harassment and Rs.33,000/- towards litigation expenses.

5.          The Opposite Party, in its written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration clause No.33 in the Plot Buyer’s Agreement dated 04.08.2011; that since the present complaint related to enforcement of an agreement to sell/purchase of a residential plot i.e. an immovable property and hence, was not covered under the Act; that the complainant did not hire any services of the Opposite Party, as the parties did not enter into any contract for hiring the services; 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. Apart from above objections, a specific objection with regard to the territorial jurisdiction of this Commission on account of existence of Clause 35 in the Agreement has been raised stating that the Courts at Mohali and the Punjab & Haryana High Court at Chandigarh alone had the jurisdiction.

6.          On merits, it was stated that the complainant, after having satisfied in all aspects, applied for booking of a plot vide application dated 19.02.2011. It was further stated that bare perusal of the application for booking and the Agreement, showed that the complainant examined all the documents with respect to the title, approvals, sanctions, layout plan etc. and authority of the Opposite Parties and after satisfying himself        about all aspects of the project, he exercised his own discretion to apply for the plot, in question. It was further stated that the complainant vide recital No.‘K’ of the said Agreement himself represented that he was not influenced by any kind of sales brochures, advertisements, representations, warranties etc. and he had relied upon his own independent investigations while deciding to purchase the plot, in question. It was denied that the Opposite Party cancelled the allotment of plot at any stage. It was stated that no refund was payable to the complainant as he had not terminated the Agreement in terms of Clause 11.3 of the Agreement by serving a notice of termination upon the Opposite Party. It was further stated that the officials of the Opposite Party as a gesture of goodwill sent the request of the complainant to its Management for consideration, which act cannot be distorted by the complainant in any manner.

7.          It was denied that any assurance to refund the amount latest by 15.10.2015 was made to the complainant. It was further stated that complainant failed to bring on record email alleged to have been sent by the Opposite Party in the month of October 2015. It was further stated that email dated 30.11.2015 could not be treated as email as there was no mention about the addresses. As regards email dated 25.02.2016 assuring refund of the amount to the complainant on or before 31.03.2016, it was stated that it was a sheer inadvertent mistake on the part of the official of the Opposite Party. It was further stated that at no point of time, the Opposite Party ever assured the complainant as regards refund. 

8.          It was further stated that the Opposite Party is possessed of all the necessary approvals and permissions to sell, develop and offer possession of the plots to its allotees but not limited to the notification dated 14.08.2008 issued by Government of Punjab exempting the Opposite Party from the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short ‘PAPRA 1995’). 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; service plans were approved on 18.05.2015; revised layout plans were approved on 15.05.2013; NOC by PSPCL was granted on 08.07.2015; approval for commissioning of electrical installations was accorded on 07.08.2015; consent to operate was granted by Punjab Pollution Control Board on 05.01.2016 and Bank Guarantee to the tune of Rs.3,24,10,301/- was submitted to PSPCL on 22.03.2016. 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. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

9.          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 Party. 

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

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

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

13.        It is evident, on record, that the complainant vide provisional allotment letter dated 29.04.2011 (Annexure C-2) was allotted plot No.318 in the residential project “IREO Hamlet” admeasuring 237.41 sq. yards, in Sector 98, SAS Nagar, Mohali. Admittedly, Plot Buyer’s Agreement was executed between the complainant and the Opposite Party on 04.08.2011 (Annexure C-3) at Chandigarh. The basic sale price of the plot, in question, 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 @Rs.350/- per sq. yard. The payment was to be regulated as per Payment Plan (Annexure I) (at Page 109 of written statement of Opposite Party). Against the total sale consideration of the plot, in question, the complainant made payment in the sum of Rs.26,71,574/-, in accordance with demand(s) raised by the Opposite Party. The Opposite Party offered change of payment plan from Time Linked Payment Plan to the Development Linked Payment Plan vide letter dated 26.09.2011 (Annexure OP-20). It is also on record that vide email dated 21.03.2015 (Annexure C-4), the complainant sought immediate possession or else refund of the amount paid alongwith interest, to which the Opposite Party responded vide email dated 16.06.2015 (Annexure C-7) stating therein that the request of the complainant was under consideration and sought time to get back to him. Further after numerous emails sent by the complainant, the Opposite Party vide email dated 25.02.2016 (Ann. C-11, at Page 59 of the file) assured the complainant to refund the money on or before 31.03.2016, which was not done.

14.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause No.33 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 case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

25.        The next 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.

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

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

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

27.                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.”

28.      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.

29.       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.”

30.     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.

31.        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 a 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.

32.        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 has spent his life savings to get a unit, for his 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 upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it 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.

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

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

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

35.     In  view of the above, the plea taken by the opposite party, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.”

             In view of the above, the objection raised by Counsel for the Opposite Party, being devoid of merit, is rejected.

15.        Another objection raised by Counsel for the Opposite Party was that since the complainant did not buy goods and did not hire any services, and was seeking enforcement of the Agreement in respect of immovable property, therefore, only a Civil Court can decide the complaint, and consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the Opposite Party, for purchasing the unit, in question. According to Clause 11.1 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Party, it was to deliver physical possession of the 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”

 

 

 

 

16.        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 remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he falls within the definition of ‘consumer’, as stated above. In this view of the matter, the objection of the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.

17.          To defeat claim of the complainant, the next objection raised by the Opposite party was that since the complainant had purchased the plot, in question, for investment/commercial purpose i.e. for resale, as and when there was escalation in the prices of real estate, as such, he 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. In the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. In  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Commission that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, 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 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.”

 

Therefore, in view of law settled by the National Commission in the aforesaid cases, the complainant falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.  

18.        The next question that falls for consideration, is as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident, that provisional allotment letter dated 29.04.2011 (Annexure C-2) was issued by the Chandigarh office of the Opposite Party i.e. Puma Realtors Private Limited, S.C.O. No.6-8, First & Second Floor, Sector 9-D, Madhya Marg, Chandigarh. Even the receipt dated 26.04.2011 (Annexure C-1) in the sum of Rs.6,50,000/- was also issued by the Opposite Party from the aforesaid Chandigarh office. Even Plot Buyer’s Agreement dated 04.08.2011 (Annexure C-3) was executed at Chandigarh. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

19.          No doubt, in the written version, an objection was also taken by the Opposite Party, that as per Clause 35 of the Agreement, the Courts at Mohali and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. 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.

20.        In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC), the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainant, to file the complaint. The submission of Counsel for the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

21.        The next question which falls for consideration, is, whether the complainant is entitled to refund of the entire amount deposited by him. It may be stated here that Plot Buyer’s Agreement was entered into between the parties on 04.08.2011 (Annexure C-3). 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 03.02.2014. Further, as per Clause 11.2 of the Agreement, in case, possession was not offered within the stipulated period, then the Opposite Party was 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 04.08.2011, 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”.

 

22.        Since the Plot Buyer’s Agreement was executed on 04.08.2011, 30 months period including 6 months grace period expired on 03.02.2014. Even 12 months extended period, in terms of Clause 11.3 of the Agreement expired on 03.02.2015. Admittedly, possession of the allotted plot has not been offered by the Opposite Party to the complainant till date. The complainant sought refund of the         amount alongwith interest vide email dated 21.03.2015 (Annexure C-4), which the Opposite Party has disputed by saying that this email does not bear its address. Be that as it may, it cannot be ignored that the Opposite Party in its email dated 16.06.2015 (Annexure C-7) stated as under:-

“As per our telephonic discussion today, we would like to inform you that your request is under consideration. Request to you please allow us some time to get back to you. Assuring you our best services always.”

Similar is the email dated 17.07.2015 (Annexure C-8 colly) sent by the Opposite Party to the complainant. Subsequently, vide email dated 25.02.2016, the Opposite Party informed the complainant as under:-

“As per our telephonic conversation, we confirm you that your request for refund of plot no.318 in the name of Dr. Bholla is under consideration.

We assure you that the refund shall be made on or before 31^st March 2016.”

 

23.        Vide the aforesaid email, the Opposite Party assured the complainant that the refund of the amount would be paid to him on or before 31.03.2016. The plea of the Opposite Party that the aforesaid email was inadvertently sent by its official to the complainant, without there being any approval of the Opposite Party to refund the amount, cannot be accepted. However, the fact is that despite numerous emails sent by the complainant, the Opposite Party lingered on the request of the complainant qua refund of his amount. The Opposite Party was, thus, not only deficient for inordinate delay in offering possession of allotted plot but was, also deficient in rendering service and indulged into unfair trade practice by retaining the hard earned money of the complainant. Against the total price of the unit, the complainant had made payments in the sum of Rs.26,71,574/- to the Opposite Party, which was undoubtedly his hard earned money. Had the Opposite Party complied with the provisions of Clause 21.2 of the Agreement, it would have definitely raised further demands and offered possession of the allotted plot. In such circumstances, the plea of the Opposite Party that it had necessary approvals and permissions, is of no significance. An adverse inference is, therefore, drawn against the Opposite Party. No cogent and plausible reason has been assigned by the Opposite Party, as to why it (Opposite Party) failed to deliver possession of the allotted plot, by the date stipulated or till date. Delay could only be condoned, under the terms and conditions of the Agreement, if there existed any plausible and justified reason. Thus, there is clear delay of around two years in offering/handing over possession of allotted plot even beyond the extended delay period and still the Opposite Party is not in a position to offer possession of the allotted plot. Computing period from date of Buyer’s Agreement viz. 04.08.2011, the Opposite Party, despite lapse of 5½ years, has failed to offer possession. It may be stated here that 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. As discussed above, possession of the allotted plot, in the instant case, has not been offered/delivered till date.

24.       In the present case also, the Opposite Party committed breach of its obligation, in not offering possession of the allotted plot, in question, within 30 months from 04.08.2011 i.e. date of signing of Buyer’s Agreement and even after expiry of extended delay period of 12 months, on 03.02.2015. 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 Party failed to hand over legal and valid possession of the allotted plot, in question, to the complainant, even after expiry of 5½ years 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 as by not offering possession of the allotted plot, in question, within the stipulated period and during extended delay period and even till date, and by not refunding the deposited amount, the Opposite Party was deficient in rendering service.

 

25.        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.26,71,574/-  was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Party, for its own benefit. There is no dispute that for making delayed payments, the Opposite Party was 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). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.26,71,574/- alongwith interest @15% simple from the respective dates of deposits (less than the rate of interest charged by the Opposite Parties, in case of delayed payment), till realization.

 

26.        In view of aforesaid position, the Opposite Party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices. Compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.1,00,000/- if granted, would be adequate to serve the ends of justice.

27.        In Consumer Complaint No.702 of 2015, the complaints have sought refund of Rs.19,59,179.15, after cancellation of the allotment; Rs.4,05,019.85 on account of deduction in the name of earnest money and Rs.2,30,160/- illegally deducted on account of brokerage charges while cancelling the allotment in favour of the complainants; interest @20% on the aforesaid amounts besides Rs.5 Lacs as compensation for mental agony & harassment; Rs.1 Lac towards punitive damages and Rs.55,000/- towards legal costs.

28.        In this case, the Opposite Parties cancelled the allotment of the plot, in question, vide letter dated 05.01.2015 (Annexure C-11) on account of failure of the complainants to pay the due amount despite numerous reminders. While cancelling the allotment, out of Rs.32,70,952.00 Ps paid by the complainants, the Opposite Parties showed the refundable amount to be Rs.19,59,179.15Ps, after deducting Rs.10,81,612.85Ps (15% of sale consideration) as earnest money and Rs.2,30,160/- as brokerage paid.

29.        No doubt, as per Clause 6, earnest money was 15% and as per Clause 19.3 of Agreement, the Opposite Parties have made themselves, entitled to forfeit earnest money, out of the deposited amount, in case of cancellation of the unit, in question, yet, in view of principle of law settled by Hon’ble National Commission in cases referred to hereinafter, an amount exceeding 10% of the total price of the unit/property, cannot be forfeited by the Opposite Parties; it being unreasonable, unless they show that they had suffered loss to that extent of the amount to be forfeited by them. In DLF Ltd. Vs. Bhagwanti Narula, Revision Petition No.3860 of 2014 decided by Hon’ble National Commission on 06.01.2015, it was held that in the absence of evidence of actual loss, forfeiture of any amount exceeding 10% of the sale price cannot be said to be a reasonable amount. The aforesaid observation of Hon’ble National Commission was recorded taking note of decision of Hon’ble Supreme Court of India in Maula Bux Vs. Union of India, 1969 (2) SCC 544 and Shree Hanuman Cotton Mills &Ors. Vs. Tata Air Craft Ltd., 1969 (3) SCC 522and Satish Batra Vs. Sudhir Rawal, (2013) 1 SCC 345..

 

30.        In DLF Universal Limited Vs. Nirmala Devi Gupta, Revision Petition No.3861 of 2014 decided on 26.08.2015, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in Paras 10 and 11 of its order, held that the Revision Petitioner was not entitled to charge interest as non-refundable amount on the subsequent installments in the wake of cancellation of plot. Paras 10 and 11 of the order read as under:-

“10.  We have now to consider whether the forfeiture amount mentioned in the letter of cancellation under the head “earnest money” and “non-refundable advance” was justified or not.  It has been stated in the said letter that a sum of Rs.15,57,781.25ps. was being forfeited as earnest money.  In the plot-buyers’ agreement, however, this amount has been shown as Rs.14,85,747/-.  It is to be seen, however, whether the OP DLF was within its rights to treat 15% of the total price as earnest money of the plot.  In a case recently decided by this Bench in “DLF Limited vs. BhagwantiNarula,” RP No. 3860 of 2014, decided on 06.01.2015, we have taken the view that an amount exceeding 10% of the total price of the property cannot be forfeited by the seller as earnest money being unreasonable, unless the OP can show that it had suffered loss to the extent the amount was forfeited by it.  Applying the same principle in the present case as well, it is held that the OP DLF was competent to forfeit only 10% of the total amount of the plot in question as earnest money.  Since the total value of the plot including Preferential Location Charges (PLC), is Rs.99,04,986.10ps. as already indicated, 10% of the earnest money comes out to be Rs.9,90,500/-

11.   In so far as interest on delayed payments, stated to be non-refundable amount in the agreement is concerned, the OP deducted a sum of Rs.3,65,479.25ps in the cancellation letter. It is observed in this regard that the complainant made payments of a sum of Rs.12 lakh at the time of initial booking and then made two further payments in the last week of June 2011. Since no further payments were made, as per the terms and conditions of the allotment as contained in Para 65 of the plot-buyers’ agreement, the OP was well within its rights to initiate the process of cancellation of the plot after the first default in making payment of an instalment. In its own wisdom, if it decided not to do so immediately, it is not entitled to charge interest as non-refundable amount on the subsequent instalments in the wake of cancellation of plot. The letter of cancellation dated 23.05.2012 makes it clear that the plot-buyers’ agreement if executed, stood cancelled and the allottee shall not have any lien or right on the said property. It is held, therefore, that the OP cannot deduct a sum of Rs.3,65,479.25ps as non-refundable amount from the money deposited by the complainant.”

Further, recently the Hon’ble National Commission in case titled Shri Harjinder S. Kang Vs. M/s Emaar MGF Land Ltd., Consumer Complaint No.482 of 2014 decided on 04.07.2016, in Para 13, held as under :-

“13.   The case of the opposite party is that as per Clause 2(f) of the Buyers’ Agreement, extracted hereinabove, 15% of the total sale price constitutes the Earnest Money which they were entitled to forfeit.  However, it has been held by this Commission in DLF Ltd., Vs. BhagwantiNarula, Revision Petition No.3860 of 2014, decided on 06.1.2015, that an amount exceeding 10% of the total price of the property cannot be forfeited as Earnest Money unless the opposite party can show that it has suffered loss to the extent of the amount actually forfeited by it.  Applying the principle laid down in the above referred decision of this Commission, the opposite party could have forfeited only a sum of Rs.12,77,475/- from the amount paid to it by the complainant.  The balance amount of Rs.71,97,275/- (84,74,750/- - 12,77,475/-) was required to be refunded to the complainant, which the opposite party has failed to do.”

31.        The aforesaid judgments clearly lay down that not more than 10% of the earnest money can be forfeited. It is therefore held that the opposite parties could forfeit an amount to the extent of 10% of the sale consideration i.e. Rs.7,21,075.00 (10% of sale consideration of Rs.72,10,752.00) out of the deposited amount of Rs.32,70,952/-. Thus, forfeiture of a sum of Rs.7,21,075.00 is adequate enough to compensate the Opposite Parties, on account of loss, if any, including brokerage charges.

32.        In view of above, out of the total deposited amount of Rs.32,70,952.00, the Opposite Parties could forfeit a sum of Rs.7,21,075.00 only and the balance amount was refundable to the complainants. As such, the complainants were entitled to the refund of an amount of Rs.25,49,877.00 i.e. [Rs.32,70,952.00 minus(-) Rs.7,21,075.00]. Once the Agreement stood rescinded by the complainants, the opposite parties, after forfeiting 10% of sale consideration, ought to have refunded balance amount to them (complainants), but they failed to do so and on the other hand, have been utilizing the same for their own benefit. The Buyer’s Agreement was cancelled on 05.01.2015 (Annexure C-11). The Opposite Parties, in Annexure C-11, had committed to send cheque towards refundable amount to the complainants but it failed to honour its commitment and, thus, indulged into unfair trade practices.

33.        When after cancellation of the Buyer’s Agreement on 05.01.2015, the Opposite Parties failed to refund the amount, their plea that the complainants were entitled to refund of Rs.19,59,179.15 as per Clause 19.1.2 of the Agreement does not merit consideration. As already stated above, the Opposite Parties failed to honour their commitment by not refunding the amount. Had the Opposite Parties honoured their commitment, the position would have been different but since they (Opposite Parties) failed, and have retained the money even for the last more than two years after cancellation on 05.01.2015, the complainants are entitled to refund as per settled principle of law. Undoubtedly, the complainants have suffered immensely by not getting refund.  

34.        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). By not refunding the aforesaid amount of Rs.25,49,877/-, the opposite parties indulged into unfair trade practice and the same also certainly amounted to deficiency, in rendering service, on their part. The complainants are, thus, entitled to refund of an amount of Rs.25,49,877/- alongwith interest @12% per annum from 05.01.2015 i.e. from the date of cancellation.

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

36.         For the reasons, recorded above, both the complaints bearing No.645 of 2016 and 702 of 2016 are partly accepted, with costs in the following manner:-

Consumer Complaint No.645 of 2016 titled ‘Dr. Gurinder Singh Bholla Vs. M/s Puma Realtors Private Ltd.

             The Opposite Party is held liable and directed in the following manner:-

(i)    To refund the amount of Rs.26,71,574/-, to   the   complainant, alongwith interest @15% p.a. simple from the respective dates of 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.1,00,000/-, to the complainant, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices, within a period of 45 days from the date of receipt of a certified copy of the order.

(iii)  To pay cost of litigation, to the tune of Rs.33,000/-, to the complainant within a period of 45 days from the date of receipt of a certified copy of the order.

(iv)  In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Party, shall be liable to pay the amount mentioned in Clause (i) above, with interest @18% p.a. simple, from the respective dates of deposits, till realization and amount mentioned in Clause (ii) and (iii) above, with interest @15% p.a. (simple) from the date of filing the complaint till realization.

Consumer Complaint No.702 of 2016 titled ‘Rajinder Chaudhary & Ors. Vs. M/s Puma Realtors Private Limited & Others.

 

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

(i)    To refund the amount of Rs.25,49,877/-, to   the   complainants, alongwith interest @12% p.a. simple w.e.f. 05.01.2015, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)   To pay cost of litigation, to the tune of Rs.35,000/-, to the complainants 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%     p.a. simple, w.e.f. 05.01.2015, till realization   and  amount  mentioned   in

Clause (ii) above, with interest @12% p.a. (simple) from the date of filing the complaint till realization.

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

38.        Certified Copies of this order be placed in the file of complaint bearing Nos.702 of 2016.

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

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

Pronounced.

09.03.2017.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

[DEV RAJ]

MEMBER

 

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