D.K. JAIN, J., PRESIDENT This Original Complaint Under Section 21 (a) of the Consumer Protection Act, 1986 (for short “the Act) is by a Senior Retired Army Personnel (Complainant No.1) and his wife (Complainant No.2), against a Real Estate Developer, Unitech Limited (for short “Unitech”) and its Managing Director, arrayed in the Complaint as Opposite Parties No.1 & 2, respectively. With a view to have a bigger accommodation for their family, consisting of their two sons and parents and allured by the features of a project, launched by Unitech, christened as ‘Aspen Greens’ at SAS Nagar, Mohali, on 08.12.2011, the Complainants applied for allotment of a residential plot in the said project. 2. Unitech offered to the Complainants Plot No.0014, Block-A, (Aspen Greens) in the Mega Township to be known as Uniworld City, in Sector -106, Mohali, Punjab admeasuring 1102.09 sq. mtrs. (1318.09 Sq. yards approx.). The cost of the said plot was fixed at ₹3,33,60,660/-, which included the basic price, external development charges, preferential location charges, development of internal service, laying of roads, laying of sewer etc. The plot was to the liking of the Complainants and accordingly, on 09.12.2011, an Agreement to Sell (titled as Buyer’s Agreement), Exhibit CW-1/1, was entered into between the parties. As per Clause 2.c of the Agreement, the Complainants were obliged to strictly adhere to the payment plan as per Annexure ‘A’ to the Agreement and in the event of any delay in payment of any instalment and other charges, they were liable to pay interest @ 18% per annum, compounded quarterly, till the date of payment, with a further stipulation that any amount so received shall first be adjusted towards the interest. The payment schedule was as under:- Basic Price Rs.29703290.00 Terrace Price Rs. 0.00 Plc Amount Rs.1581378.00 EDC/IDC Charges Rs.2075992.00 Car Parking Price Rs.0.00 Net Price Rs.33360660.00 Property Type : PLOT 1102 Property No. : Block/Tower: A Floor: No. 0014 Super Area 1318.09 SQYD Pref. Code : CORNER ----------------------------------------------------------------------------------------------- No. Payment Description Due Date Amount ----------------------------------------------------------------------------------------------- 1 At the time of Registration 08/12/2011 2970329.00 2 Within 45 days of Registration 22/01/2012 27420002.00+(sic) 3 On final notice of Possession / / 2970329.00+(sic) ----------------------------------------------------------------------------------------------- Total Amount :- 33360660.00 ---------------------------------------------------------------------------------------------“ 3. As per Clause 4.a of the Agreement, possession of the plot was to be delivered to the Complainants within 12 months from the date of entering into the Agreement, subject to force majeure circumstances, stipulated in Clause 8.b of the Agreement, which reads as under: “8.b Force Majeure: “ That, however, if the handing over of possession of the plot is delayed for reasons of “Force Majeure” or circumstances beyond the control of the Developers or because of any notice or order of the Government, including slow down strike, civil commotion or by reason of war, enemy or terrorist action or an act of God, delay in the grant of completion certificate by the Government and/or any other public or competent authority, the Developers shall be entitled to a reasonable extension of time in the agreed date for delivery of possession of the plot.” 4. As per the payment plan, after the initial payment of a sum of ₹29,70,329/- on 08.12.2011, at the time when the Agreement to Sell was entered into with the Opposite Party, an amount of ₹2,74,20,002/- was to be paid within 45 days of the said date and the balance amount of ₹29,70,329/- was to be paid at the time of final notice of possession by Unitech. In order to meet the time schedule for payment, the Complainants raised a housing loan of ₹2,50,00,000/- from HDFC Bank and deposited a sum of ₹2,74,20,002/- with Unitech on 22.01.2012, as stipulated in the Agreement. The said housing loan was to be repaid in 10 years by way of monthly instalment of ₹3,50,000/-. Though the possession was to be delivered within 12 months from the date of signing of the Agreement i.e. on 09.12.2011, but even after a lapse of almost two years, there was no development at the site. The Complainants were not even able to locate the allotted plot in the area. The Complainants claim to have visited the office of Unitech in the month of June, 2013 but did not get any definite date when the possession would be handed over to them. When letters dated 08.07.2013 (Ex.CW-1/2) and 27.07.2013 (ExCW-1/3), sent by the Complainants to Unitech enquiring about the firm date for delivery of possession of the plot and accusing Unitech of duping them into buying the plot, did not evoke any response from Unitech, the Complainants got a legal notice issued to Unitech on 12.08.2013 (Ex. CW-1/4). Unitech chose not to respond to the legal notice as well. 5. Left with no alternative, alleging deficiency in service and unfair trade practice on the part of Unitech in not handing over the possession of the plot in question within the stipulated timeframe and in pocketing the amount of ₹3,03,90,331/-, i.e. almost 90% of the total sale consideration, for profiteering and illegal financial gains and resultant financial loss and mental agony, the Complainants have filed the present Complaint. The Complainants have prayed for the following reliefs: “i) award to the complainants 18% interest p.a. compounded quarterly upon the amount deposited with the opposite party from the date of entitlement of possession till the date of actual handing over of possession of the plot, in the same manner as the complainants would have to pay in case of default? ii) award to the complainants the amount of Rs.3.5 lacs per month which is being paid as EMI towards the loan taken for purchase of the plot, from the date of entitlement of possession till the date of actual handing over of possession of the plot? iii) award to the complainants compensation on account of rebate/adjustment they would have got in income tax on the interest paid to the financial institution on the loan taken for purchase of the plot. iv) award to the complainants compensation @ 60 per sq. yrds. per month of the area of the plot for the period of delay in offering the possession of the said plot beyond the period of 12 months as agreed to by the opposite party. v) award to the complainants compensation on account of harassment and mental agony?” 6. On being served, Unitech filed its written version, resisting the Complaint on diverse grounds, including its maintainability. As preliminary objections, it is averred that this Commission does not have the pecuniary jurisdiction to try/adjudicate the Complaint as the Complainants have deliberately compounded and escalated their claim so as to make it within the pecuniary jurisdiction of this Commission; the Complainants are not “Consumers” within the meaning of Section 2(1)(d) of the Act, as they already own residential property and the plot in question has been booked for resale/commercial purpose; vide Clause-13 of the Buyer’s Agreement, dated 09.12.2011, it was resolved between the parties that all their disputes, differences or disagreements arising out of, in connection with or in relation to the Agreement, shall be decided by Arbitration in accordance with the provisions of the Arbitration & Conciliation Act, 1996 and in view thereof, no Court or Commission or Tribunal, except the Arbitral Tribunal, has jurisdiction to entertain any dispute arising out of the transaction in question. On merits, it is pleaded that the possession has got delayed due to force majeure circumstances, inasmuch as, due to active implementation of social schemes, like National Rural Employment Guarantee Act (NREGA) and Jawaharlal Nehru National Urban Renewal Mission (JNNURM), there was a sudden shortage of labour in the real estate market and, therefore, the brief amenities, to be provided, could not be completed on time. Further, the overall recession and financial problems, which were not foreseen, also contributed to the delay in the completion of the project. It is stated that the work at the site is in full swing and Unitech is hopeful of handing over the possession to the Complainant in the second quarter of 2014. While asserting that there is no deficiency in service on its part, as the delay has been caused due to the circumstances beyond its control, it is pleaded that for the delay in delivery of possession, the Complainants are only entitled to compensation @ ₹50/- per sq. yard per month, save and except for the delay caused by circumstances beyond the control of Unitech. 7. Both the parties have led their evidence by way of affidavits. In the admission/denial of documents, all the documents filed by the Complainants were admitted by Unitech and were exhibited accordingly. 8. During the course of hearing on 07.09.2015, both the parties were asked if the dispute, subject matter of the Complaint, could be resolved by refunding to the Complainants the total amount deposited by them with Unitech along with interest @ 18% p.a. from the date of deposit till realization. The Complainants’ reaction to the suggestion was positive. On behalf of Unitech, it was stated that they were willing to refund the amount deposited by the Complainants but with interest only @ 10% p.a. Having regard to the said posture and in order to test their bonafides, vide order dated 16.09.2015, Unitech was directed to refund the total amount deposited by the Complainants with interest @ 10% p.a. from the date of each deposit till the actual payment, within six weeks from that date. However, Unitech failed to comply with the said order. Consequently, the Complainants filed an application Under Sections 25 and 27 of the Act, praying for an order of attachment of the assets of Unitech, because of deliberate non-compliance of the direction issued by this Commission. Vide order dated 11.12.2015, a notice was issued to Unitech to show cause as to why proceedings for attachment of its assets be not initiated in terms of Section 25 of the Act. However, instead of showing any cause, on 13.01.2016, a cheque in the sum of ₹30,00,000/- was handed over to the Complainants which was not even 10% of the amount deposited by them with Unitech. Time was sought and granted till 18.01.2016 to Unitech to file affidavit with respect to phasing of instalments and the rate of interest, they were willing to pay, which has been done. However, since no consensus ad-idem could be arrived at between the parties on the question of rate of interest as also on the period within which the total amount could be refunded to the Complainants, the case was listed for final arguments. 9. Accordingly, we have heard Learned Counsel for the Complainants and Unitech and perused the documents filed and exhibited in evidence. The parties were permitted to file brief synopsis of their submissions. The Complainants have filed the synopsis but Unitech has chosen not to do so. 10. In their synopsis, the Complainants have stated that since they were unable to bear the financial burden of paying an EMI of ₹3,50,000/- towards the housing loan taken from the HDFC Bank, they shifted the loan to ICICI Bank and are still paying an amount of ₹2,25,000/- as EMI, by raising loans from relatives and friends. It is also stated that as against a sum of ₹3,03,90,331/- deposited by them with Unitech, so far they have only received back a total sum of ₹45,00,000/-, by way of two demand drafts in the sum of ₹30,00,000/- and ₹15,00,000/- dated 15.01.2016 and 08.04.2016 respectively, against a deposit of over ₹3,00,000,00/- in the year 2011 and 2012. In support of their stand, that they are entitled to interest @ 18% p.a. on the total amount deposited with Unitech, the Complainants have referred to Clause 2.c of the Agreement, providing for charging of interest @ 18% p.a., compounded quarterly, on delayed payment. Strong reliance is placed on the decisions of this Commission particularly in Swarn Talwar & Ors. V. Unitech Ltd., rendered in Consumer Case No. 347 of 2014, wherein, vide order dated 14.08.2015, this Commission has granted simple interest @ 18% per annum on the amount deposited by a number of Complainants with Unitech. It is also pointed out that the Appeal (Civil Appeal Diary No. 35562 of 2015), preferred by Unitech against the said order, has been dismissed by the Hon’ble Supreme Court on 11.12.2015. 11. Having bestowed our anxious consideration to the facts at hand, we are of the opinion, that the Complaint deserves to be accepted. The afore-noted preliminary objections, raised by the Unitech regarding maintainability of the Complaint, in complete ignorance of the statutory provisions and the settled legal position, are stated to be outrightly rejected sequentially. As per Section 21(a) of the Act, this Commission can entertain an original complaint where the value of goods and compensation, if any, claimed exceeds Rupees One Crore, which in the instant case is much more than the said amount. As regards the plea that since at the time of booking of the plot, the Complainants were already owning a house and therefore, the plot was booked for resale/commercial purpose and hence they were not “Consumers” within the meaning of Section 2(1)(d) of the Act, in a number of decisions rendered by this Commission, it has been held that unless there is evidence on record to show that a Complainant had booked more than one property/plot for the purpose of trading in the same, a bald assertion by the Opposite Party that plot/property had been bought for the purpose of making profits is not sufficient to hold that the transaction was for “Commercial purpose.” The ratio of the said decisions is on all fours on the facts of the present case. Except for a bald plea in the written version that the plot had been purchased by the Complainants with a view to sell it on premium and make profits, Unitech has not said even an additional word in this behalf, leave alone leading evidence to prove the assertion. 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. 12. The next question for consideration is whether there were any “force majeure” conditions, which prevented Unitech from developing Sector 106, in their prestigious project “Aspen Greens” and delivering the subject plot to the Complainants by the committed time? 13. The law in relation to “force majeure”, has been explained by the Hon’ble Supreme Court in M/s Dhanrajamal Gobindram Vs. M/s Shamji Kalidas & Co. - AIR 1961 SC 1285. Referring to Lebeaupin Vs. Crispin - [1920] 2 K.B. 714, M. Hidayatullah, J. (as his Lordship then was), speaking for a three Judge Bench, observed that where reference is made to “force majeure”, the intention is to save the performing party from the consequences of anything over which, he has no control. 14. Bearing in mind the object and intention of the said expression, in our opinion, the alleged non-availability of Labour on account of successful implementation of social schemes, like NREGA and JNNURM, cannot, by any stretch of imagination, be a condition or circumstances, constituting “force majeure”, howsoever widest meaning may be assigned to it. Apart from the fact that no material has been placed on record by Unitech to show that despite efforts, it was unable to procure labourers to complete the development of the subject Sector for over four years, even otherwise, it is not its case that there was no construction/development activity in Sectors 97, 106 and 107, Mohali, referred to in the Agreement, between the period December 2011 when the Agreement was entered into and December 2012, when the possession of the plot was to be delivered, for the same very reasons. It belies our conviction that a developer like Unitech, who, in its Written Version claims to be a builder of great reputation, having earned name through high quality of work, was unable to organize a small Labour force for providing the so called “Brief amenities”, as referred to in the said Written Version, to the Complainants. Hence, we have no hesitation in rejecting the defence of “force majeure”. 15. In that view of the matter the inevitable conclusion is that there was gross “deficiency”, as defined in Section 2(1)(g) of the Act, on the part of Unitech in its failure to deliver possession of the subject plot to the Complainants in terms of the Agreement to Sell, dated 09.12.2011. It is also trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency in rendering of service, such deficiencies or omissions tantamount to unfair trade practice as defined, in section 21 (r)(ii) of the Act, as well. [See: Lucknow Development Authority Vs. M.K. Gupta – (1994) 1 SCC 243 ] 16. Having arrived at the said conclusion, the core question for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of Unitech on account of non-delivery of the allotted plot. 17. The provisions of the Act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the Opposite Party. In Ghaziabad Development Authority Vs. Balbir Singh - (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon’ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon’ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the Complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in our view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc., if it happens to be a plot of land, like in the present case. 18. Having noticed the broad principles, to be kept in view while determining the compensation, we may advert to the facts at hand. As noted above, against the total cost of ₹3,33,60,660/-, the Complainants had paid to Unitech an amount of ₹3,03,90,331/-, in January 2012, by taking an interest bearing loan of ₹2,50,00,000/- from the Bank, with the fond hope that they will get possession of the plot within a period of 12 months. In the written submissions, the Complainants have stated that they are still paying to ICICI Bank an EMI of ₹2,25,000/- on the loan amount. Admittedly, the possession was never offered and as a matter of fact even the Sector has not yet been fully developed. In its written version filed on 10.01.2014, it was stated that Unitech is hopeful of handing over the possession of the plot by the end of 2nd Quarter of the year 2014. At the cost of repetition, we have no hesitation in holding that it is a case of gross “deficiency” on the part of Unitech in not delivering possession of the plot by the committed date, subjecting the Complainants to extreme monetary loss and mental harassment. As noted above, the Agreement stipulates that in the event of delay on the part of the buyer in making payment of any instalment, the Developer shall charge interest @ 18% p.a., compounded quarterly, logically, in the event of default on its own part, the Developer should not shy away from paying interest at the same rate. Therefore, bearing in mind the amount of monetary loss and harassment suffered by the Complainants, in our opinion, it would be just and fair if Unitech is directed to pay to the Complainants simple interest @ 18% p.a. from the date of each deposit, till its realization. We are also of the view that Unitech having disregarded our interim order dated 16.09.2015, directing it to refund to the Complainants, the amount deposited by them along with interest @ 10% p.a., which it was willing to pay, within six weeks of the said order, with impunity, for which non-compliance, no explanation is forthcoming, it is a fit case where, while sparing it from a stringent action of attachment of its assets, in terms of Section 25 of the Act, exemplary costs should be imposed on it. Accordingly, we direct that Unitech shall pay to the Complainants costs of ₹3,00,000/- and deposit a further sum of ₹2,00,000/- in the Consumer Welfare fund by way of a demand draft drawn in favour of PAO, Ministry of Consumer Affairs, New Delhi. The amount deposited by the Complainants, after accounting for the amounts paid during the pendency of this Complaint along with interest, as directed, shall be paid to them within six weeks from the date of receipt of an authenticated copy of this order, failing which the interest shall be compounded quarterly in the same manner as it is charged by Unitech from its buyers in the event of any default in payment of installment by them. Costs shall also be paid/deposited within the same period. |
