STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.     Ms. Adarsh Rani Parmar wife of Inderjit Singh Parmar resident of H. No. 16, Sat Kartar Nagar, Jalandhar, Punjab 144003

2.       Mr. Inderjit Singh Parmar son of Sh. Swaran Singh Parmar resident of H. No. 16, Sat Kartar Nagar, Jalandhar, Punjab 144003

          Both complainants No.1 and 2 through their lawful general power of attorney holder namely Mr.Ankur Dada s/o Sh. Anoop Krishan Dada i.e. complainant No.3

3.       Mr.Ankur Dada s/o Sh. Anoop Krishan Dada, resident of House No.91, First Floor, Phase-7, Mohali-Punjab.

……Complainants

V e r s u s

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

….Opposite Parties No.1 and 2

3.       Housing Development Finance Corporation Limited, SCO No.153-155, Sector 8-C, Chandigarh-160008, through its Branch Head. (No claim is pressed against it)

…..Proforma Opposite Party No.3

Argued by: Mr. Deepak Aggarwal,   Advocate for the complainants.

                    Mr. Ramnik Gupta, Advocate for  Opposite Parties No.1 & 2.

                   Ms.Anjali Moudgil,Advocate for Opposite Party No.3

Complaint under Section 17 of the Consumer Protection Act,

1986.

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

                   MR. DEV RAJ, MEMBER.

                   MRS. PADMA PANDEY, MEMBER

PER  DEV RAJ, MEMBER

               The facts, in brief, are that complainants No.1 and 2 are mother-in-law and father-in-law respectively of complainant No.3. Complainant no.3 who was at the relevant time posted at Chandigarh and was a sole care taker of complainants no.1 and 2 and also almost all their relatives and friends were/are  located at Chandigarh, as such, they decided to purchase an apartment in Chandigarh. In the  first quarter of the year 2011, the complainants started searching for an apartment.  In the meantime, opposite parties No.1 and 2 made a number of assurances through various newspapers, media, marketing emails and telemarketing with regard to launching of their integrated residential township under the name and style of IREO RISE, Sector 99, SAS Nagar, Mohali, having various attractive salient features.  It was further averred that a meeting was held between the parties at Chandigarh office of the Company and in pursuance thereof, the complainants moved an application dated 16.09.2011 for booking of a residential apartment in the said project, for which they  paid an amount of Rs.4.50 lacs, as booking amount vide cheque dated 183510 dated 03.09.2011. Thereafter, vide provisional allotment letter dated 21.09.2011 (Annexure C-1) the complainants were allotted Apartment No. CCB-00-003, Ground Floor, Tower Cassia Court-B having  approximately super area of 1609 Sq. ft. in the said project. The said apartment was purchased by the complainants under subvention scheme, as is evident from the document Annexure C-2  dated 28.09.2011. It was further averred  that  thereafter Apartment Buyer’s Agreement dated 11.10.2011 ( Annexure C-3) was executed between the parties. As per the said agreement, total sale consideration of the apartment was fixed at Rs.54,06,930/-, which included basic sale price of Rs. 51,97,760/-; IFMS charges to the tune of Rs.48,270/- external development charges to the tune of Rs.1,60,900/- Two numbers of Parking Spaces was to form an indivisible part of the apartment in question. Payment plan opted by the complainants was construction Linked attached with the Apartment Buyers Agreement and  marked as Annexure C-4. It was further averred that  according to Clause 13.3 of the above said Agreement, subject to allottee having complied with all the formalities, the opposite parties No.1 and 2 were liable to hand over physical possession of the apartment in question to the complainants within a period of 30 months i.e. on or before 10.04.2014, by providing all  basic amenities, required for smooth habitation.  It was further stipulated in the said Clause that only for the purpose of obtaining occupation certificate from the competent authorities, the opposite parties no.1 and 2 made themselves entitled to 180 days, meaning thereby that possession of the apartment was committed to be delivered by 10.04.2014 only but for obtaining the said certificate they were entitled to get 180 days further from the said committed date.

2.              It was  stated that   in order to make payment towards the said apartment, the complainants raised loan from Proforma Opposite Party No.3. Tripartite Agreement dated 24.02.2012 (Annexure C-5 colly.), under subvention plan was executed between the parties, according to which, opposite parties no.1 and 2 were liable to pay interest on the amount paid towards the apartment, for a period of 24 months only, from the date of first disbursement of loan. However, thereafter, interest on the loan amount was to be paid by the complainants, which is being paid by them.  It was further  stated that the complainants are paying a huge amount of interest towards equal monthly installments to Proforma Opposite Party No.3. It was further stated that  as per demand raised by the opposite parties No.1 and 2, from time to time, the complainants started making payment of installments towards the said apartment and  till February 2012,  paid substantial amount of Rs.27,46,251/- i.e. more than 50% of the total cost. However, when the complainants visited the site to see the construction level, they were surprised to see that it was being carried out at a snail speed. Accordingly they made a request to OPs No.1 & 2 to speed up the construction, as per commitment made. At that time, it was assured by Opposite Parties no.1 and 2 that at any cost, construction will be completed and possession of the apartment will be delivered by the committed date.  Believing the commitments made by opposite parties no.1 and 2, the complainants waited patiently and kept on making further payments, demanded by them from time to time.

3.             It was further stated that  during the period intervening, since complainants no.1 and 2, who were living with complainant no.3, felt paucity of space, in a rented accommodation and also at the same time, possession of the apartment was not expected in the near future, complainants no.1 and 2 went abroad to Canada, to live with their son and daughter and decided to come back, when possession of the apartment is offered and delivered by opposite parties no.1 and 2. However, they  kept on making payments, as and when demanded by opposite parties no.1 and 2  and by 10.11.2014, the complainants  paid an amount of Rs.52,30,668.72ps. against Rs.54,06,930/-  i.e. more than 95%, which amount was over and above the amount to be demanded and paid as per scheduled plan. However despite that, possession of the apartment was not delivered to the complainants despite stipulated date to hand over possession of the apartment having expired on 10.04.2014. Thereafter, complainant No.3 visited the office of opposite parties no.1 and 2 a  number of times with a request to update him on the construction and development work, as also apprise him the exact date of delivery of possession of the apartment, but no satisfactory reply was given to him.  Complainant no.3 then visited the site to see the construction and development work but was shocked to see that it was put to stand still.   Complainant no.3 kept on visiting the Chandigarh office of the opposite parties No.1 and 2 numerous times to inquire regarding delivery of possession of the Apartment but opposite parties No.1 and 2 did not entertain his request and lingered on the matter on one pretext or the other. On the other hand,  opposite parties No.1 and 2 had been making demand of payment vide various notices without achieving the requisite stage of construction as per construction linked plan and also in the absence of development at the site, on the ground that if the payments were not made, the same shall attract “delayed payment interest” as per the terms and conditions of the Agreement.  However, the complainants kept on making payment of installments towards the said Apartment. 

4.       It was further stated that  visits made by complainant no.3 in 2015, revealed that  there were no approach roads to the site, the work at the site was stand still etc. Even the internal roads were not laid. Further electricity, water, PHE services and other basic amenities like club, swings etc. had not been provided at the site. Even necessary permissions/approvals in respect of the project, in question, have not been obtained by opposite parties no.1 and 2 from the competent authorities, as the same were not shown, when request for the purpose was made by complainant no.3.  Complainant no.3 also visited the office of the opposite parties no.1 and 2 in the year 2016 many times  but his grievance was not redressed.   When neither possession of the apartment was offered nor penalty amount by way of interest on the deposited amount was paid to the complainants, as such, under above circumstances, left with no choice, they sent detailed email dated 06.03.2017 (Annexure C-8) to opposite parties no.1 and 2.  When the email sent by the complainants was not even replied by opposite parties no.1 and 2, they met the Officers of opposite parties no.1 and 2 at Chandigarh and New Delhi, with a request to acknowledge their request but to no avail. It was further stated that the opposite parties collected the huge amount of Rs.52,30,668.72ps. against Rs.54,06,930/-  from the complainants by making a false promise of delivery of possession of the apartment by the stipulated date but they did not abide by their commitment. Still possession of the apartment is not expected in near future. It was further stated that  after launching the project in question, instead of completing the same and handing over possession of the units to the purchasers, opposite parties no.1 and 2 have invested the money of the complainants, in new projects launched by them in the same area. This is the main reason of delay in offer of possession of the unit in question. Otherwise, not even a single letter was sent by opposite parties no.1 and 2 claiming force majeure circumstances. Had any force majeure circumstances been faced by them, they would not have launched new projects.

 5.          It was further stated that  in case of making default in making payments on the part of the buyer/allottee, as per Clause 7.3 of the Agreement, opposite parties no.1 and 2 are charging heavy interest @20% with quarterly rests ,whereas, on the other hand, in case of default on the part of the opposite parties no.1 and 2, in not abiding their commitment regarding delivery of possession, they very conveniently have made themselves comfortably liable to pay delayed compensation of meager amount of Rs.7.50 per square feet of the super area i.e. Rs.12,067/- per month only (saleable area 1609 square feet x Rs.7.50) i.e. Rs.1,44,810/- per year, which comes out to about 2.7% p.a. In these circumstances, there will be no pressure upon the opposite parties no.1 and 2 to complete the construction since they will be more than happy to keep on paying paltry compensation of about 2.7% p.a. on the deposited amount, instead of completing the construction and providing the basic amenities.

6.            Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties No.1 & 2 , the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking following directions to Opposite Parties No.1 & 2

1.       To hand over actual physical possession of fully constructed Apartment No. CCB-00-003, Ground Floor, Tower Cassia Court-B approximately super area of 1609 Sq. ft. (149.47 sq. mtr.) in Group Housing Project known as the “IREO RISE”, Sector 99, SAS Nagar, Mohali Punjab, alongwith all the basic amenities after obtaining necessary permissions and certificates from the Govt. Authorities and get registered conveyance & sale deed of apartment on payment of charges by complainants, directly to the Registering Authority.
2. To pay interest @15% p.a. on the deposited amount of Rs.52,30,668.72ps.  from 10.04.2014 i.e. the promised date of possession till actual delivery of possession of the apartment.
3. To pay compensation in the sum of Rs.3 lacs, for causing mental agony, physical harassment, financial loss to the  complainants and deficiency in service, negligence and adopting unfair trade.
4. To pay cost of litigation to the tune of Rs.50,000/- to the complainants.

7.       Upon notice, Opposite Parties entered appearance through their respective counsel and filed their separate replies.

8.           OP No.1 & 2 in  their joint  reply took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.34 in the Apartment Buyer’s Agreement dated 11.10.2011; that since the present complaint related to enforcement of an agreement to sell/purchase of a residential apartment i.e. an immovable property and hence, was not covered under the Act; that the complainants did not buy any goods; that the complainants did not  hire any services of Opposite Parties No.1&2, as the parties did not enter into any contract for hiring the services; that the complainants booked the Apartment in question solely for the commercial purpose to earn profit, as complainants No.1 & 2 have owned and possessed residential house bearing No.16, Sat Kartar Nagar, Jalandhar ; that this Commission has no territorial jurisdiction on account of existence of Clause 36 in the Agreement and that the compensation claimed is beyond Section 14(1)(d) of the  1986 Act, as in the present claim, there is no allegation of negligence on the part of the Opposite Parties.   

9.           On merits, it was stated that  the total cost of the apartment, as is evident from payment plan annexed as Annexure IV with the Agreement was  Rs.55,40,772/- inclusive of  applicable service tax and revised service tax, as duly intimated to the complainants vide letter dated 12.4.2012, therefore, at present the total sale consideration of the apartment in question is Rs.55,57,820.97p, as is evident from the latest statement of accounts Annexure OP-10.  It was further stated that the complainants have made the payments towards consideration price of the Apartment in question in advance.  It was stated that payment of the consideration price of the apartment in question in advance by the complainants was the contractual obligation under the Agreement and it was their prerogative to make the said payment either from their own resources or by raising the housing loan from the financial institution. OP No.1 & 2 facilitated the complainants to raise the housing loan from OP No.3 by entering into a tripartite agreement dated 24.2.2012 and granting permission to them to mortgage  and  have borne a sum of Rs.301671/- on account of payment of interest in advance under the subvention scheme as is evident from the FRIL calculation dated 27.2.2012 as OP No.3 after deducting the aforesaid amount of interest had disbursed the remaining amount of installment to OPs No.1 & 2.

          It was further stated that Clause No.13.3 cannot be read in isolation or in parts. Term and Condition No.13.3 has to be read alongwith terms and conditions No.13.4 & 13.5 in order to ascertain the real intention of the parties. It was further stated that according to clause No.13.3 of the Agreement, OPs No.1 & 2 were liable to hand over the physical possession of the apartment in question to the complainants within a period of 30 months from the date of signing of the Agreement or from the approval of the building plans, whichever is later and in the present case the building plans were approved on 18.1.2014 and that being so, the commencement of the possession period has to be reckoned from 18.1.2014. It was further stated that the grace period of 180 days as mentioned in term and condition No.13.3 is not distinct and separate from the period of 30 months since the said grace period also embraces within its domain the period for making of application for obtaining occupation certificate. It was further stated that the complainants have categorically and unambiguously agreed vide term and condition No.13.4 of the said Agreement to accept as liquidated damages from the OPs No.1 & 2 in the event of non-offering the possession even after the expiry of the grace period. Further the complainants vide term and condition No.13.5 of the said Agreement have agreed unequivocally that they would be having a right to terminate the said Agreement and to seek the refund if within 12 months from the date of expiry of the grace period, possession is not offered by the OPs  and since present complaint relates to the relief of possession of the apartment in question, therefore the complainants are duly covered under term and condition No.13.4 of the Agreement, hence, they would be entitled for the liquidated damages as agreed under the said clause. It was further stated that all the amenities which are required for the occupation and living smoothly are in existence at site and accordingly the occupation certificate has been applied by the OPs with the authorities. All the roads of the project are complete and existing at site. OPs have possessed of all the necessary approvals and permissions to sell, develop and offer possession of the plot to its allottees, No Objection Certificates etc.  copies of which are Annexure OP-16 to OP-29.

            It was further stated that except sending email dated 6.3.2017 to create paper trail, the complainants had not enquired about the construction or the possession of the apartment in question as they never made any correspondence with answering OPs in this regard. It was further stated that terms and conditions of the Agreement are binding upon the parties and no party can venture out of the same. The complainants were made acquainted with the key indicators of the terms and conditions of the Apartment Buyer Agreement as appended as Schedule-1 with the booking application containing the terms and conditions of the delayed payment interest to be paid by the complainants and the delayed compensation to be paid by the answering OPs and the complainants after reading, understanding and accepting the same executed the said Booking Application and Schedule-I, hence, now they cannot be allowed to retrace their steps back and disown the said duly agreed terms and conditions. Complainant No.3 has recently again accepted the same terms and conditions by executing the Apartment Buyers Agreement dated 1.11.2016 regarding aforementioned apartment.  It was further stated that the construction of the apartment in question is already complete and the same is ready for possession and accordingly the answering OPs have applied for the issuance of Occupation Certificate on 11.8.2016 and in this regard no condition is pending compliance and only the Authorities are to issue the said Certificate. It was further stated that other allegations made in the complaint are vague, false, frivolous and untenable.  It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

10.              Opposite Party No.3 in its reply stated that   the grievance of the complainants is directed only against OPs No.1 & 2, who have allegedly failed to deliver its commitments in terms of Agreement and the complainants are aggrieved of the delay in handing over of possession of the apartment. There is no allegation of deficiency in service against the answering OP. As regards the finance advanced by OP No.3, the rights of the parties are governed by the loan agreement (Annexure R-3/1) and the tripartite agreement C-5. In case of cancellation of the Unit or in the contingency of termination of the Plot Buyer’s Agreement, OP No.3 has the first charge/right to seek apportionment of its dues.

11.          The complainants, in support of their case, submitted affidavit of complainant No.3, by way of evidence, alongwith which, a number of documents were attached.

12.          Opposite Parties No.1 & 2, in support of their case, submitted the affidavit of Mr.Rajiv Bhatia, their Authorized Representative, by way of evidence, alongwith which, a number of documents were attached.  Opposite Party No.3 submitted the affidavit of Sh.Nandan Singh Rawat, its Manager and authorized representative.            13.          Complainants filed rejoinder to the reply filed by OPs No.1 & 2, reiterating the averments made in the complaint and controverting those made in the reply.

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

15.        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 Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, noted that litigation in the Consumer Fora is cost effective. The complaint in the State Commission can be filed by making payment between Rs.2,000/- to Rs.4,000/- only. Whereas, as per principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of arbitrator’s fee. As per mandate of 1986 Act, a complaint is proposed to be decided within three months from the date of service of the other party. On the other hand, 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 was observed that if the matter is referred to an Arbitrator, it would defeat the very purpose of the provisions of 1986 Act. Paras 26, 33 and 34 of the said order, inter-alia, being relevant, are extracted hereunder:-

“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.”

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.”

              Same is the ratio of recent judgment passed by a three Judges Bench of  Hon’ble National Commission on 13.07.2017 in case titled ‘Aftab Singh Vs. Emaar MGF Land Ltd. & Anr.’, in Consumer Complaint No.701 of 2015, with IA/247/2016, IA/505/2017, IA/7294/2015, IA/9570/2015 & IA/11813/2016.

             In  view of the above, the plea taken by the Opposite Parties No.1 & 2, 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.

16.         The next question, that falls for consideration, is, as to whether, the complainants are investors and did not fall within the definition of a consumer, under Section 2 (1) (d) (ii) of the Act, as alleged by opposite parties no.1 and 2. It may be stated here that there is nothing on the record, that the complainants are property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. On the other hand, the complainants have specifically stated in para no.1 of the complaint that they have purchased the said unit, for their residential purpose. They (complainant No.1 & 2) have also stated that they have two daughters and one son.  In their rejoinder filed, it has been clarified that  complainant No.1 & 2 wanted to settle near their daughter who is married to complainant No.3, and their son alongwith his family is leading independent life at their  house at Jalandhar.  It has also been clarified in the rejoinder that the OPs could not give possession of both the plots and Complainant No.3 had to file two original complaints before this Commission and in both the said complaints, the matter was compromised between the parties whereby in one of the matters the entire amount was refunded alongwith interest to           complainant No.3 and in another consumer complaint, alternative plot/flat was offered.  Since, opposite parties no.1 and 2 have leveled allegations against the complainants for purchasing the Unit for commercial purpose, as such, the onus lays upon them, to prove it, which they failed to do so. Thus, in the absence of any cogent evidence, in support of the objections raised by the  opposite parties no.1 and 2, mere bald assertion i.e. simply saying that the complainants being investor, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only this, recently in a case titled as  Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-

“In the case of the purchase of the houses 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. 

              The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no.1 and 2, in their written reply, therefore, being devoid of merit, is rejected. 

17.        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 complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from Clause 33 of the Agreement, that the parties had agreed that “Hence this Agreement shall be deemed to have been executed at Chandigarh even if the Proposed Allottee has prior thereto executed this Agreement at any place(s) other than Chandigarh”, meaning thereby that the Agreement in question, was deemed to be signed/executed at Chandigarh. Not only this, Provisional Allotment Letter dated 21.09.2011(Annexure C-1) demand note dated 27.1.2012, 7.4.2014( at pages 102, 104)  as also payment receipts (at pages 96,98,100, 101 and 103),  were issued by opposite parties No.1 and 2  from their Chandigarh Office, as the same bore address of the Company as “SCO 6-7-8, Sector 9-D, Madhya Marg, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by opposite parties  in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

18.          No doubt, in the written version, an objection was also taken by opposite parties  No.1 & 2 that as per Clause 36 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 complainants, 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.

              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 complainants 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 them, to file the complaint. The submission of Counsel for opposite parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

19.         Another objection raised by Counsel for opposite parties No.1 & 2  was that since the issues raised in the present complaint relate to the interpretation and scope of the specific clauses of the said Agreement and being contractual in nature, and no services were to be provided, as such, only the Civil Court has power to adjudicate the same, and this Commission did not have the jurisdiction.   At the time of arguments also, it was also contended by the Counsel  that the complainants are seeking directions from this Commission to re-write the agreed terms and conditions of the Agreement. As stated above, the complainants hired the services of opposite parties  for purchasing the unit, in question, in the manner, referred to above. Opposite parties  were to deliver possession of the unit, in question, in a time bound manner, referred to above, with complete basic amenities. By not completing the development and construction within the stipulated period, opposite parties No.1 & 2 violated the terms and conditions of the Agreement and were deficient in rendering service. 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 Bishamber Dayal Goyal and Ors. Civil Appeal No.3122 of 2006, decided on 26.3.2014. Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of consumer, as stated above. In this view of the matter, the objection raised by opposite parties in this regard, being devoid of merit, must fail, and the same stands rejected.

21.          The next question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainants. As stated above, according to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Parties No.1&2, it was liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment  of   the   preconditions   whichever   is   later (commitment period). Undoubtedly, the building plans relating to this project were approved on 18.01.2012. Since, Buyer’s Agreement was executed on 11.11.2011, computing 30 months from 18.01.2012, commitment period for handing over possession was up-to 17.07.2014. On account of force majeure circumstances, referred to in the Agreement, Opposite Parties No.1&2 were entitled to advantage of 180 days grace period after the expiry of commitment period, for unforeseen delays in obtaining the Occupation Certificate etc. from the Competent Authority. In the instant case, Opposite Parties No.1&2 applied for the Occupation Certificate vide application dated 11.08.2016 (Annexure OP-9) i.e. after expiry of 180 days grace period and the same is still awaited. In such circumstances, Opposite Parties No.1&2 are not entitled to benefit of grace period of 180 days. Opposite Parties  No.1&2 have failed to place, on record, any cogent and convincing evidence, that construction of the Unit was delayed on account of force majeure circumstances and the same  is going to be complete in the near future.

22.          As stated above, Opposite Parties No.1&2  were duty bound to hand over possession by 17.7.2014 but they have  failed to   offer possession of the Unit, in question, even after delay of more than three years. The complainants cannot be made to wait indefinitely and delay in offering possession is certainly causing loss to the complainants, they having deposited a sum of Rs.52,29,923/- (Annexure C/6) during the period 16.9.2011 to 10.11.2014.  In the instant case, even extended delay period of one year, in terms of Clauses 13.3 and 13.4 expired on 17.07.2015 and still possession has not been offered. The Counsel for OP No.1 & 2 during arguments stated that possession was likely to be offered in a month or so. When there is inordinate delay even beyond the extended delay period, OPs No.1&2, therefore, cannot be heard to say that time for offering possession was not the essence of the contract/agreement. By making a misleading  statement, that possession of the unit, was to be delivered within the period as discussed above, and by not abiding by the commitment made despite payment of around 95% payment by the complainants, they (Opposite Parties No.1&2) were not only deficient, in rendering service, but also indulged into unfair trade practice. Clearly there is delay in delivering possession.

23.             The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for delay in delivering physical possession of the unit beyond the time stipulated in the Agreement. It may be stated here that in case titled Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon’ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)         xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.

(3)          No separate compensation would be payable to the complainants either towards the rent if any paid by them or for the mental agony and harassment which they have suffered on account of the failure of the opposite party to perform its contractual obligation.”

24.          No doubt in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainants for delay, but it does not mean that even in the event of inordinate delay, that too without justified reasons, in completing the construction and delivering the possession, the complainants would be entitled to meagre compensation of Rs.7.50 per sq. ft. of super area, which is much less than the bank rate for loan or fixed deposit. If the argument of Opposite Parties No.1&2 is to be accepted, it would lead to an absurd situation and would give an unfair advantage to the unscrupulous builder, who might utilize the consideration amount meant to finance the project, by the buyer, for its other business venture, at nominal interest of 3 to 4 per cent, as against much higher bank lending rates. This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act.

25.          Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the case, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 18.07.2014, till delivery of possession of the unit, would meet the ends of justice.

26.          It is noted from Annexure OP -12 that while disbursing an amount of Rs.15,37,000/- to the complainants, discounted amount in the sum of Rs.3,01,671/- was received by HDFC out of Rs.15,37,900/- which was apparently by way of arrangement between OP No.1 & 2 and OP NO.3.  OP No.1 & 2 got benefit of discounted rate of interest @ 9.30% against subvention rate of 10.75%  for a period of two years from 28.2.2012 to 1.2.2014. For all intents and purposes, liability of complainants to repay was for a sum of Rs.15,37,900/- disbursed by OP No.3 on 28.2.2012.  As admitted by Opposite Parties No.1 & 2 in paras 7 and 8 in their written statement, as per agreement regarding the subvention scheme, they have borne the interest for 2 years in advance against the disbursement of Ist instalment of Rs.15,37,900.30P. OPs No.1 and 2 in the written statement have averred that the complainants did not pay the sum of Rs.3,01,671/-  yet credit thereof was afforded to the complainants.  As stated above, a sum of Rs.3,01,671/- was part and parcel of Ist installment of loan in the sum of Rs.15,37,900.30P disbursed by OP No.3 in favour of OP No.1 and 2 and therefore, the complainants are entitled to credit thereof. As per stipulation in Tripartite Agreement, the builder assumed the liability for a period of 24 months from the date of first  disbursement by HDFC. This period of 24 months was upto 1.2.2014. If contention of OPs No.1 & 2 that a sum of Rs.3,01,671/- was paid by it is accepted, it would mean that they (OPs No.1 & 2) did not meet their liability under the tripartite agreement. The plea of OP No.1 & 2 in view of position stated above is not tenable and the same stands rejected.

27.             The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them, by not delivering physical possession of the unit to them, by Opposite Parties No.1&2, by the promised date in the Agreement i.e. by 17.07.2014. The complainants purchased the unit   with the hope to have a roof over their head  but their hopes were dashed to the ground. The possession of unit, in question, has not been offered to the complainants, till date by Opposite Parties No.1&2, what to speak of delivery thereof. The complainants have, thus, undergone a lot of mental agony and physical harassment, on account of the acts of omission and commission of Opposite Parties No.1&2. However, compensation in the sum of Rs. 3.00 Lacs claimed by the complainants appears on the higher side. The complainants, in our considered opinion, have been adequately compensated by granting interest @12% per annum on the deposited amount for the delay period. In addition, they (complainants) will also get the benefit of escalation in the price of unit, in question because Opposite Parties No.1&2 have stated in their written statement that they are committed to offer possession of the apartment on the rate agreed to at the time of execution of agreement. In these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainants, if granted, to the tune of Rs.1,50,000/-, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

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

29.             For the reasons, recorded above,  the complaint is partly accepted with costs and Opposite Parties No.1 &2 are, held liable and directed as under:-

1. To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects within a period of three months, from the date  of receipt of a certified copy of this order, on payment of the amount, if any, legally due against them.

2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc. by the complainants.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 18.07.2014 to 30.09.2017, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., from the date of default till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainants w.e.f. 01.10.2017, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1,50,000/- on account of mental agony and physical harassment, caused to the complainants, and Rs.35,000/- as cost of litigation, to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.

30.          However, complaint against OP No.3 is dismissed.

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

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

Pronounced.

 18.08.2017