Chandigarh

StateCommission

CC/664/2016

Col. (Doctor) Varinder Kumar Batish (Retd.) - Complainant(s)

Versus

M/s Unitech Ltd. - Opp.Party(s)

Atul Nehra, Adv.

09 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	664 of 2016
Date of Institution	:	03.10.2016
Date of Decision	:	09.03.2017

 

1. Col. (Doctor) Varinder Kumar Batish (Retd.)
2. Major (Doctor) Anila Sharma (Retd.)

H.No.2146, Ground Floor, Sector 35, Chandigarh.

…… Complainants

 

V e r s u s

M/s Unitech Limited, Marketing Division SCO No.189-90-91, 1^st Floor, Sector 17-C, Chandigarh, through its Chairman, Managing Directors and Authorized Official.

…. Opposite party

Complaint under Section 17 of the Consumer Protection Act, 1986

 

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

                        MR. DEV RAJ, MEMBER.

 

Argued by:-      Sh.Atul Nehra, Advocate for the complainant.

Mrs.Vertika H. Singh, Advocate for opposite party

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainants are ex-servicemen. Allured by representatives made by the opposite party, through media, website, proclaiming launching of world-class township, under the name and style namely ‘Gardens’, situated in Uniworld City, Sector 97, Mohali, Punjab, they purchased a plot bearing no.0088, measuring 358.80 square yards, from original allottee namely Rajinder Sharma, on payment of Rs.13,45,500/-, which he had already paid to the opposite party. Endorsement in the Agreement, in the name of the complainants, was entered on 17.07.2008. Copy of the Buyer’s Agreement dated 05.05.2008 executed in favour of Rajinder Sharma, has been placed on record as Annexure C-2. Total price of the said plot was fixed at Rs.53,37,150/- plus Rs.60,000/- towards club registration charges. The complainants were offered time bound payment plan. As per terms and conditions of the Agreement, possession of the developed plot was agreed to be handed over within 36 months, from the date of signing of the above said Buyer’s Agreement i.e. on or before 04.05.2011. By 31.08.2010, as per demands raised from time to time, the complainants had paid an amount of Rs.51,81,858/- towards price of the plot, in question. The opposite party, vide letter dated 08.09.2010, informed the complainants that the price of the plot stood reduced, on account of some benefit given by the State of Punjab, qua tax imposed. By stating as above, it was stated that virtually entire amount stood paid, qua plot in question, upto 08.09.2010. When possession of the plot was not offered, as agreed, the complainants approached the opposite party many a time; however, they failed to get any positive response, as to when possession of the developed plot would be offered to them. It was specifically stated by the complainants that they had booked the plot, so that after raising construction, they can live therein, as they were residing in a rented accommodation and paying rent to the tune of Rs.30 to 40 thousand, per month. It was further stated in this complaint that development at the site was not complete, however to conceal their inefficiency, the  opposite party sent one letter dated 01.08.2015, asking them to file an undertaking, so that possession can be offered to them. In the said letter, it was indicated that the infrastructure was not complete. The said letter has been placed on record as Annexure C-5. Personal visits of the complainants to the site of project made it very clear that basic amenities like electricity, boundary wall, security, internal roads etc. were not available. The site looked like agricultural field. On 24.09.2015, the complainants sent legal notice Annexure C-7, to the opposite party to refund their amount, as development was not complete at the site and only a paper possession was offered to the complainants, by the opposite party to avoid its liability. When they failed to get any response to their legal notice, present complaint was filed, with a prayer to issue directions to the opposite party to refund the amount paid, with interest and compensation for mental agony and physical harassment as also litigation expenses.

2.         Upon notice, the opposite party filed its written statement, wherein, many preliminary objections were taken like offer of possession of the plot, in question, had already been made to the complainants vide letter dated 01.08.2015, as such, now the consumer complaint is not maintainable. Territorial jurisdiction of this Commission was challenged by stating that Buyer’s Agreement was signed at New Delhi and also all the payments were received by Gurgaon Office of the opposite party. It was averred that just because the opposite party  is having its Marketing Office at Chandigarh, wherefrom it was facilitating the purchasers, will not confer jurisdiction upon this Commission, to adjudicate the present complaint. While placing reliance upon the judgment titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016, decided by  larger Bench of the National Consumer Disputes Redressal Commission, New Delhi (in short the National Commission), pecuniary jurisdiction of this Commission was also challenged. It was pleaded that the complaint filed is beyond limitation. It is asserted that the plot, in question, was purchased for future gain, as such, the complainants being investors, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.
3.         On merits, it is admitted that the  complainants had purchased a plot, from the opposite party, in the manner, referred to above. Fact qua basic price of the plot, as mentioned in the complaint is also admitted. It is stated that consumer complaint was not maintainable, and only a Civil Court, could adjudicate the dispute, in question, the transaction being contractual in nature. It was not seriously disputed that as per Article 4.a.(i) of the Agreement, the opposite party was to hand over possession of the plot, in question, to the  complainants within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions. It was averred that the said period was tentative. It is clarified that the opposite party, could not hand over possession of the plot to the  complainants, by the stipulated date, as there was global meltdown/recession of the economy worldwide, resulting into cash crunch throughout and also due to objections raised by the Punjab State Power Corporation Limited (PSPCL), a number of times, as such, electricity could not be made available at the site, by the opposite party. However, electricity will be provided to the project, shortly. It is stated that possession of the plot has already been offered to the complainants on 01.08.2015, but they failed to take the same. It was stated that the contents of letter dated 01.08.2015 to the effect that the facilities were not fully operational, did not mean that the said facilities were not available.  It is averred that it is well within the knowledge of the  complainants that for any delays, stipulated penalty has been provided in the Agreement, which safeguarded their rights. It is stated that, in case, still the  complainants sought refund of the amount deposited, in that event, forfeiture Clause would be attracted, as envisaged in the Agreement. It was pleaded that the complaint is defective, as application for filing a joint complaint was not moved by the complainants. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
4.         The parties led evidence in support of their case. 
5.         The contesting parties, raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
6.         Before making any reference to the merits of the case, we will like to decide the objection raised by the opposite party that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It is necessary to mention here that, as per admitted facts, the complainants have sought refund of the amount deposited i.e. Rs.51,81,858/- alongwith interest @18% p.a. from the respective dates of deposits, till realization; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation to the tune of Rs.1 lac. At the time of arguments, it is argued by Counsel for the opposite party that if the entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and in that event, it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra).  

                We are not going to agree with the submission raised. This Commission, in the case of  Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, by relying upon the ratio of judgment titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC), held that when determining pecuniary jurisdiction, in a complaint, component of interest claimed, is not to be added in the relief sought. In that case, it was recorded as under:- 

“In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/ Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

 

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

 

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

 

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

 

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

 

In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected. ”

       

                Thus, in the present case also, if interest is not added to the entire claim raised, it will remain below Rs.1 crore. In view of above, objection raised by Counsel for the opposite party stands rejected.

7.         The next question, that falls for consideration, is, as to whether, this Commission has got 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, that out of the deposited amount, an amount of Rs.8,89,725/- and Rs.4,48,500/-, in respect of the plot, in question, was received by Regional Office/Marketing Office of the opposite party, at Chandigarh i.e. “Unitech Ltd., Regional Office, SCO 189-191, Sector 17-C, Chandigarh”, vide different cheques  (at pages 40 and 41 of the file). If it is so, in that case also, this Commission has territorial jurisdiction to entertain and decide this complaint, in view of law laid down by the National Commission, in a case titled as Ravinder Kumar Bajaj Vs. Parsvnath Developers Pvt. Ltd. & 3 ors., First Appeal No. 515 of 2016, 23.08.2016, wherein it was held as under:-

“Since in the Grounds of Appeal, a specific averment is made by the Appellant to the effect that in the year 2007, when the subject flat was booked, the Respondent Company did have a Branch office at Chandigarh, where the payments in respect of the project used to be received regularly, on a pointed query, learned Counsel appearing for the Company very fairly states, on instructions, that the stand of the Appellant is correct.

In light of the statement by learned Counsel for the Respondent Company, I am of the view that in the present case, the State Commission UT, Chandigarh has the Territorial Jurisdiction to adjudicate upon the Complaint filed by the Appellant”.

8.         Not only as above, Perusal of the Buyer’s Agreement also revealed that besides Registered Office of the opposite party at New Delhi, the same had  also been executed between the complainants and  Marketing Office, Unitech Limited at SCO No.189-90-91, Sector 17C, Chandigarh/opposite party. At the same time, since it has also been very frankly admitted by the opposite party that it has its Marketing Office at Chandigarh, and was/is acting as facilitator to the purchasers including the complainants, meaning thereby that besides receiving payments aforesaid, it also marketed the project from that place, as such, this Commission has got territorial jurisdiction in view of law laid down by the Hon’ble Supreme Court of India in State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839, in which it was held that the Court(s), in whose Jurisdiction, products/goods are marketed, will have the territorial Jurisdiction to entertain and decide a complaint and also in view of Section 17 (2) (a) (b) and (c) of the Act. The objection taken by the opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 
9.         It was not disputed that as per condition no. 4.a.(i) of the Agreement, possession of the fully developed plot, was to be delivered to the complainants, within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions. Relevant clause reads thus:-

“(i) That the possession of Plot shall be delivered by the Developers to the Allottee(s) within 36 months hereof subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable by the intending Allottee(s)  as provided herein have been paid to the Developers. It is, however, understood between the Parties that various Plots comprised in the Township shall be ready in phases and handed over accordingly.”

10.         Counsel for the opposite party has vehemently contended that though delayed, but possession of the developed plot was offered to the complainants on 01.08.2015, however, despite that they have failed to take possession  and on account of that, no relief can be granted to them. Now we will have to see, as to whether, possession so offered to the complainants was a genuine one or paper possession. A similar question, with regard to the same project, in respect of a plot (no.68) located very near to the plot of the complainants, fell for determination before this Commission in a case titled as Brig.Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Complaint case no.59 of 2016, decided on 24.05.2016. In that case also, the opposite party claimed that it had offered possession of the plot therein, vide letter dated 22.07.2015. This Commission while going through the contents of that letter and also evidence on record, observed that possession so offered was only a paper one. Relevant portion of the said order read thus:-

“The next question, that falls for consideration, is, as to whether, letter dated 22.07.2015 Annexure C-6, sent by the opposite party, to the complainants, could be termed as offer of possession of the unit, in question. It may be stated here that perusal of contents of letter aforesaid clearly goes to reveal that it was mere an intimation/update on the status of development of the project, where the unit, in question, was located, as it was clearly mentioned therein that the development activities of essential services in the said project are in full swing and significant progress has been made in the project. Reading of the contents of letter dated 22.07.2015, makes it crystal clear that it cannot be termed as offer made to the complainants, in respect of the unit, in question.

Even otherwise, in case, all these development activities, had been undertaken, and completed at the site, by 22.07.2015, then it was for the Opposite Party, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but it failed to do so.

Not only this, it is also very strange that on the one hand, the opposite party is claiming that it had offered possession of the unit, in question, to the complainants, as far as back on 22.07.2015, however, on the other hand, a letter dated 03.02.2016 (after about more than seven months of 01.07.2015) has been placed on record alongwith the reply, as Annexure OP-3, wherein  a request to the GMADA/Competent Authority, for issuance of partial completion certificate in respect of the project, has been made by it. It means that offer made by the opposite party to the complainants, vide letter dated 22.07.2015, in respect of the unit, in question, was mere a paper offer, and the same is not sustainable, in the eyes of law, as completion certificate by that date, had not even been applied to the GAMDA. This act also amounted to unfair trade practice, on the part of the opposite party.”

11.         Position is the same in this case. Vide letter dated 01.08.2015, it is clearly mentioned that development work was going on at the site. It is on record that letter for issuance of partial completion certificate, was sent by the opposite party  only on 03.02.2016 vide Annexure R-5 (at page 94 of the paper book). Not only as above, it is proved on record that electricity supply was not available at the site. It is so reflected in letter dated 18.05.2016 (at page 93 of the paper book). Not only as above, when we read contents of para no.9 of the reply (on merits), it became apparently clear that on account of global meltdown worldwide, it was not possible for the opposite party to complete the project in time. Admission made by the opposite party, itself makes it clear that it had not obtained necessary approvals/sanctions from the PSPCL, as a result whereof, it was not provided with electricity, for the project in question and also delay further took place on account of global meltdown, which allegedly affected it (opposite party).

                In the first instance, it is submitted that if the opposite party failed to obtain requisite permission(s) from the PSPCL and various objections were raised by the said Department, it cannot be termed that it encountered force majeure circumstances. Had the papers been submitted by the opposite party, after completing all the formalities, as required, there would not have any reason for the said Department to raise any objection, in that regard. Shortcomings/faults on the part of the builder(s) cannot be termed as force majeure circumstances.

                Coming to the plea taken regarding global meltdown, it may be stated here that, when the opposite party, had already received more almost the entire sale consideration, in the manner referred to above, in respect of the plot, in question, from the  complainants, then it does not lie in its mouth, that it faced extreme financial hardship, due to recession in the market/global meltdown worldwide, as far as the project, in question, is concerned. It is not that the opposite party was, in the first instance, required to develop the project, by arranging funds out of its own sources, and, thereafter, the plots were to be sold to the allottees, on future payment basis. Had this been the case of the opposite party, only in those circumstances, the plea with regard to facing extreme financial hardship would have been considered to be correct, by this Commission. Admittedly,  the entire sale consideration of the plot, in question, had already been paid but actual physical possession of the same, was not delivered to the complainants, by the stipulated date and the offer so made on 01.08.2015, was only a paper possession. 

                Even otherwise, the said difficulty/ground i.e. recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the development works at the site. A change in economic or market circumstances affecting the profitability of a contract or the circumstance, is not regarded as a force majeure condition. Neither any new legislation was enacted nor an existing rule, regulation or order was amended, stopping suspending or delaying the development of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. There is no allegation of any lock-out or strike by the labour, at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it, at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God, which could have delayed the completion of the project, within the time stipulated in the Agreement. A similar question fell for determination before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in  Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  decided on 14 Aug 2015. The National Commission, in that case, while rejecting the plea of the builder, held as under:-

“Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.

Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the  complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word ‘slow down’ having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.”.

                The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case.

                Be that as it may, possession of the developed plot, was required to be offered on or before 04.05.2011. As held above, possession was offered only on 01.08.2015 and that too was a paper possession, as held above.  Even if, for the sake of arguments, the said offer is assumed to be genuine offer (in the present case paper possession), at that stage, on expiry of the agreed period, the complainants cannot be forced to take possession and at the same time, they are also at liberty to seek refund of the amount deposited alongwith interest, compensation etc., as there was a material violation on the part of the opposite party. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so held by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

12.         Not only this, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding 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.”

 

13.         Further, in another case titled as 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, under similar circumstances, 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”.

 

                Under these circumstances, it is held that since there was a material violation on the part of the opposite party, in not offering and handing over possession of the plot by the stipulated date and also the possession so allegedly offered vide letter dated 01.08.2015, has been held to be paper possession, as such,  the complainants are entitled to get refund of amount deposited by them.

                In view of above facts of the case, the opposite party is also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

14.         Since it has already been held above that the complainants are entitled to refund of the amount deposited, alongwith interest and compensation, as such, the plea taken by Counsel for the opposite party, that the opposite party is ready to pay compensation for the period of delay, as per the Agreement, has no legs to stand and is accordingly rejected.
15.         At the same time, it is also held that since a specific period of 36 months for handing over possession of the plot was promised by the opposite party, vide Clause 4 (a) (i) of the said Agreement, as such, the argument raised by Counsel for the opposite party at the time of arguments, that the period of delivery of possession was tentative, as such, time is not to be considered as essence of the contract, has no legs to stand. Even otherwise, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/Allotment Letter, is an unfair trade practice, on the part of the Builder, as has been held by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. In view of above, the plea taken up by Counsel for the opposite party, in this regard also stands rejected.
16.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. It may be stated here that admittedly offer of possession of the plot, in question, was not made to the complainants, by the stipulated date i.e. 04.05.2011, but on the other hand, was ultimately made on 01.08.2015, which has been challenged by the complainants, by way of filing the present complaint and has been proved to be paper possession.  Thus, if a period of two years is counted from 01.08.2015, the present complaint could very well be said to be filed within limitation.

                It is very pertinent to add here that in the present case, the opposite party is trying to defeat the claim of the complainants, on the ground of limitation. Mere issuance of a letter, which has been held to be a paper possession, is as good as the case of the complainants, that they were not offered possession of the plot. If the contention of the opposite party is held to be correct then every builder will adopt this tactics of pushing a paper possession, even in the absence of development and basic amenities at the site, and will take benefit of limitation out of that, just to defeat the claim of the purchasers/allottees. Such a practice needs to be deprecated. As such, in those circumstances also, it can be held that in the cases of non-delivery and/or delayed delivery of actual physical possession of the unit(s), there is a continuing cause of action, in favour of the purchasers/consumers, in view of principle of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, and  Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for the opposite party, in this regard, being devoid of merit, must fail, and the same stands rejected.  

17.         To defeat claim of the complainants, an objection was also raised by opposite party that the complainants are investors, as they have purchased the plot, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. It may be stated here that there is nothing, on record to show that the complainants are the property dealers and are indulged in sale and purchase of property, on regular basis. The complainants in para nos.2 and 13 of their complaint have clearly stated that they had purchased the said plot, for constructing a house and reside therein. In the absence of any cogent evidence, in support of the objection raised by opposite party, mere bald assertion to that effect, 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 as 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 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.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

 

                The 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 the opposite party in its written reply, therefore, being devoid of merit, is rejected.  

18.         An objection was also raised by the opposite party that the dispute being related to contractual matter, the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainants hired the services of the opposite party, for purchasing the plot, in the manner, referred to above. According to condition no.4.a.(i) of the Agreement, physical possession of the developed plot, was to be delivered by the opposite party, within a period of 36 months, from the date of execution of the same (Agreement) i.e. latest by 04.05.2011 alongwith all basic amenities as mentioned in Article 2.a.(ii) of the Agreement. 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”

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 1986 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 also be availed of by them, as they fall within the definition of consumer. 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.

19.         It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainants. It is not in dispute that an amount of Rs.51,81,858/- was paid by the complainants, without getting anything, in lieu thereof, except a paper possession. 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 (compounded quarterly @18%) as per Article 2.c. of the Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. 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 complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest @15% compounded quarterly, (less than the rate of interest charged by the opposite party, in case of delayed payment i.e. 18% compounded quarterly, as per Article 2.c. of the Agreement), till realization. 
20.         As far as the plea taken by the opposite party, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not the case of the opposite party, that it was ready with possession of the developed plot, to be delivered to the complainants, by the stipulated date but the complainants wanted to rescind the contract, on account of some unavoidable circumstances/financial constraints or for any personal reason, and were seeking refund of the amount deposited. Had this been the case of the opposite party, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the opposite party, in this regard, has no legs to stand and is accordingly rejected.
21.         To defeat the claim of the complainants, an objection was also raised that since application for filing a joint complaint is not filed, as such, the complaint is liable to be dismissed on this ground alone. We are not going to agree with the contention raised.  From the perusal of contents of the complaint, it reveals that the same has been signed by both the complainants. It was for this Commission, to satisfy itself, as to whether, the complaint filed is maintainable or not. Once, notice has been issued by this Commission, in this complaint, permission is deemed to have been given to the complainants to file this complaint, jointly. Even otherwise, the proceedings before the Consumer Fora, are summary, in nature. The Consumer Protection Act, 1986, is a beneficial legislation, to provide speedy, inexpensive and hassle free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not fully applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. In view of above, the plea taken by the opposite party stands rejected.
22.         No other point, was urged, by the contesting parties.
23.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite party is directed as under:-

1.       To refund the amount of Rs.51,81,858/- alongwith interest @15% compounded quarterly, from the respective dates of deposits onwards, to the complainants.
2.       To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3.       To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.
4.       The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15%, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

24.         However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said plot it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
25.         Certified Copies of this order be sent to the parties, free of charge.
26.         The file be consigned to Record Room, after completion.

Pronounced.

09.03.2017

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Rg.