Chandigarh

StateCommission

CC/125/2018

Rajani Guglani - Complainant(s)

Versus

Omaxe Chandigarh Extension - Opp.Party(s)

Amitabh Suri, Adv.

10 Jun 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	125 of 2018
Date of Institution	:	02.04.2018
Date of Decision	:	10.06.2019

 

1. Mrs. Rajani Gugnani aged 51 years wife of Mr.Anil Gugnani, resident of House No.5-A, Navodai School, Sector 25 West Chandigarh U.T.
2. Sh.Anil Gugnani, R/o House No.5-A, Navodai School, Sector 25 West, Chandigarh U.T. (Name added vide order dated 12.12.2018 passed in MA No.672/2018).

…..Complainants

V e r s u s

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., having Regd. Corp. Office 10 L.S.C. Kalkaji, New Delhi, through its Managing Director/Directors/Chief Executive Officer Mr.Rohtas Goel.

2^nd Address:-

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO 143-144, Sector 8-C, Chandigarh through its Managing Director/Directors/Chief Executive Officer Mr.Rohtas Goel.

3^rd Address:-

 M/s Omaxe Chandigarh Extension, Site Address:- In the revenue Estate of Villages Kansala, Parol, Kartarpur, Rani Majra Takipur Boothgarh, Dhode Majra Rasoolpur and Bhagat Majra in Mullanpur LPA (GMADA) District SAS Nagar (Mullanpur) Punjab, through its Managing Director/Directors/Chief Executive Officer Mr.Rohtas Goel.

              .... Opposite Party

 

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

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MRS.PADMA PANDEY, MEMBER

                        SH.RAJESH K. ARYA, MEMBER

 

Argued by:       Sh.Amitabh Suri, Advocate for the complainants.

      Sh.Ashim Aggarwal, Advocate for the opposite party.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

 

                Before going into facts and merits of the case, it is significant to mention here that though, initially, only complainant no.1 has filed this complaint, however, during pendency of this complaint, the name of complainant no.2 was also got added in the headnote thereof, as he was also co-allottee of the plot, in dispute, by way of moving separate application, which was allowed by this Commission. As such, this complaint is treated to have been filed by complainants no.1 and 2 respectively.

                Brief facts of the case are that the complainants have filed this complaint seeking directions to the opposite party to deliver possession of plot bearing no.OCE/II/448F measuring 301 square yards, purchased in its project, named ‘Omaxe New Chandigarh’, Mullanpur, Punjab, total price whereof was fixed at Rs.56,58,684.94ps. It is definite case of the complainants that despite the fact that as per demands raised by the opposite party from time to time, they have paid substantial amount of Rs.59,01,602.11ps. towards price of the said plot, under time linked payment plan, yet, it failed to deliver possession thereof by 28.03.2014 i.e. within a period of 18 months plus 6 months totaling 24 months from the date of execution of Agreement dated 29.03.2012. On account of unjustified demands, the opposite party has received excess amount, over and above the cost of the plot. For making payment towards price of the said plot, the complainants have raised housing loan, from a bank, for which they are paying equated monthly installments. It was averred that the aforesaid act of the opposite party amounted to deficiency in providing service and adoption of unfair trade practice. Hence this complaint.

2.         In the written reply filed by the opposite party, it was stated that the complainants did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, as they are investors. Pecuniary and territorial jurisdiction of this Commission was challenged. Only the Courts at Punjab and Delhi has territorial jurisdiction to entertain this complaint. As per Clause 44 of the allotment letter/agreement, this Commission has no jurisdiction, to entertain and decide dispute between the parties, and the matter needs to be referred to an arbitrator for adjudication. The complaint is bad for non-joinder of complainant no.2, who is also co-applicant in respect of the plot, in question.
3.         It was stated that possession of the plot, in question, was offered to the complainants vide letter dated 25.01.2016, after completing the development work and basic amenities, which fact has been concealed by them (complainants). The opposite party has also obtained completion certificate from the Competent Authorities. The complainants were sent number of reminders/notices, to take possession of the plot, in question, and also to get sale deed executed but they failed to do so. It was pleaded that since period to offer possession of the plot was to be computed excluding Saturdays, Sundays and Bank Holidays; no definite period was committed to hand over possession of the plot; and also the plot, in question, falls under the category of immovable property, as such, time was not to be considered as essence of the contract. However, in the same breath, it was pleaded that the complaint filed is time barred. Against total sale consideration of Rs.58,80,018.74ps., the complainants had paid an amount of Rs.58,79,375/- and not the amount mentioned by them, in the complaint. Prayer was made to dismiss the complaint with cost.
4.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and repudiated those of written version of the opposite party.
5.         The parties led evidence in support of their case.
6.         We have heard the contesting parties and have gone through the evidence and record of the case, very carefully.
7.         First, we will like to deal with an objection raised by the opposite party with regard to pecuniary jurisdiction. It may be stated here that in the present case, total value of the plot, in question i.e. Rs.56,58,684.94ps.; plus compensation claimed by way of interest @9% p.a. for the period of delay, on the deposited amount of Rs.59,01,602.11ps.; compensation claimed for mental harassment and other relief claimed., if taken into consideration, it exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary jurisdiction, to entertain and decide this complaint. Objection taken by the opposite party, thus, stands rejected.
8.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide this 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 letters dated 31.01.2017, and 14.11.2017  Annexure OP-4 colly. (at pages 70 to 73 of the paper book), asking the complainants to get sale deed executed,  were sent by Chandigarh Office (Regional Office) of the opposite party, as the said documents, bear round stamp of the said office (Chandigarh Office). These two letters have been placed on record by the opposite party itself. Furthermore, perusal of payment receipt dated 08.02.2012, in the sum of Rs.7,64,747/- (at page 35 of the file),  31.03.2012 in the sum of Rs.5,70,787/- (at page 36 of the file) and 07.07.2012 in the sum of Rs.5,30,788/- (at page 37 of the file), were received at Chandigarh Office of  the opposite party.  On other payment receipts placed on record, it is evident that first address thereupon, has been mentioned as SCO No.143—144, Sector 8-C, Chandigarh i.e. Regional office of the opposite party. Above said facts clearly envisage that cause of action accrued to the complainants to file this complaint before this Commission, at Chandigarh.

                It is also necessary to refer to a case titled as Ravinder Kumar Bajaj Vs. Parsvnath Developers Pvt. Ltd. & 3  Ors., First Appeal No. 515 of 2016, decided by the National Commission on 23.08.2016. In that case, qua project launched by the builder/opposite parties, at Rajpura, a complaint was filed by Sh. Ravinder Kumar Bajaj, before this Commission. The said complaint was dismissed for want of territorial jurisdiction, noting that only two payments were credited in the account of the opposite party, in a bank at Chandigarh. By noting that neither the Agreement was signed at Chandigarh, nor substantial payment was received by the opposite party at Chandigarh, the complaint was dismissed by this Commission. Sh. Ravinder Kumar Bajaj went in appeal before the National Commission, which was decided by it, vide order dated 23.08.2016, by noting that at one point of time, Company had a Branch Office at Chandigarh. Appeal was allowed by the National Commission, by observing 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.

Resultantly, the Appeal is allowed; the impugned order is set aside and the Complaint is restored to the Board of the State Commission UT at Chandigarh for adjudication on merits in accordance with law.”

                Order passed by this Commission was set aside and the matter was remitted back for hearing the complaint, on merits. In Sh. Ravinder Kumar Bajaj case (supra), admittedly, only two payments were credited in bank account maintained by the opposite parties. Even then, it was held by the National Commission that this Commission has territorial jurisdiction to entertain the complaint because at one time, a Branch Office was being maintained by the opposite parties in Chandigarh. In view of above, objection raised in this regard, stands rejected.

                The opposite party also took an objection that since as per Clause 44 (c) of the Agreement, it was mutually agreed to between the parties that the Courts at Punjab and Delhi, shall have Jurisdiction, to entertain and adjudicate the dispute(s) in respect of the plot, in question,  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 (complainants), to file the complaint. In view of above, objection taken by the opposite party, in this regard, also stands rejected. 

9.         As far as objection raised by the opposite party, that in the face of existence of provision 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, is concerned, it may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), 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), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018.

                In this view of the matter, objection raised by the opposite party, in this regard, stands rejected.

10.         The next question that falls for consideration, is, as to whether, the complainants are investors, as such, they would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Act, 1986.

                It may be stated here that the complainants, in their rejoinder have clarified that the plot, in question, was purchased by them for their personal use. Still they are seeking actual physical possession of the plot, in question, alongwith compensation for the period of delay in offering it and other reliefs.  At the same time, there is nothing on record to prove that the complainants, are property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the plot, 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.  Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. Since the opposite party has levelled allegations against the complainants, the onus lay upon it, to place on record, documentary evidence in that regard, which it failed to do so. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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, Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, and recently in Shashi Kala Gupta Vs. M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & Anr., First Appeal No. 1281 of 2017, decided on 15 Mar 2019. Relevant part of the said order (FA 1281 of 2017) reads thus:-

“……..This Commission in Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.  (I) (2016) CPJ 31 (NC)  held that when there is a specific pleading stating that the additional plots/flats purchased are for the personal use of the family members, the onus is on the Opposite Parties to establish that the purchaser is dealing in real estate i.e. purchase and sale of plots/flats and are indulging in commercial activity.  In the instant case there is no documentary evidence filed by the Developer to establish that the Complainant was indulging in any commercial activity in real estate, involved in the purchase and sale of plots…….. ”

 

                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, therefore, being devoid of merit, is rejected. 

11.         As far as objection taken regarding non-joinder of complainant no.2 in the consumer complaint is concerned, the same has become infructuous in view of order dated 12.12.2018 passed by this Commission in miscellaneous application bearing no.672 of 2018, filed by complainant no.1 to implead complainant no.2 Sh. Anil Gugnani, as one of the co-complainant therein. Furthermore, as on today, there is nothing on record that the order dated 12.12.2018 is under challenge, as such, it has attained finality.
12.         It is evident from record that allotment letter/agreement was executed between the parties on 29.03.2012, and as per Clause 24 (a) thereof, the opposite party, committed to complete development of the plot within 18 months with extended period of 6 months from the date of execution thereof i.e. on or before 28.03.2014. In the entire written statement, we did not find even a single reason, assigned by the opposite party, as to why, possession of the plot in question, was not offered and delivered to the complainants, by the committed date. Admittedly, possession of the plot, in question, was taken over by the complainants on 21.01.2019, during pendency of this complaint, on the orders of this Commission.
13.         Now the moot question, which falls for consideration, is, as to by which date, the opposite party was actually ready with delivery of physical possession of the plot, in question, to the complainants. 

                At the time of arguments, Counsel for the opposite party contended with vehemence that possession of the plot, in question, was offered to the complainants, vide letter dated 25.01.2016 Annexure OP-3, followed by reminders to them to take over the same and get executed sale deed but they failed to take over the same. On the other hand, the complainants denied of receipt of letter Annexure OP-3. Be that as it may, the question which arises here is, as to whether, by the date when possession of the plot was offered to the complainants, it was a genuine one or not. It is settled law that before offering possession of the plot/unit, it is obligatory for the project proponent to obtain completion certificate and in the absence thereof, if possession is offered that will have no value in the eyes of law and the purchaser is not obliged to take the same. It was so said by the National Commission in Inderjit Singh Bakshi Vs. S.M.V. Agencies Pvt. Ltd., First Appeal No. 729 of 2013, decided on 30 Nov 2015. Relevant part of the said order reads thus:-

“Admittedly in the year 2012 or even in 2013, when the possession is claimed to have been offered, the Respondent was not possessed of the completion certificate from the authorities concerned.  As a matter of fact, it is conceded that requisite completion certificate has been recently received in the year 2015.  If that be so, offer of possession, stated to have been made to the Complainant in the year 2012, was no offer at all.  An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate.”

 

Under above circumstances, now we have to see, as to whether the opposite party was in possession of completion certificate, when possession of the plot was allegedly offered to be complainants vide letter dated 25.01.2016 or not. At the time of arguments, when we put a specific question to Counsel for the opposite party, as to when completion certificate, in respect of the project was obtained from the competent Authority, he answered i.e. it was obtained on 28.04.2017. A copy of the completion certificate dated 28.04.2017 issued by the Greater Mohali Area Development Authority, Mohali, is also on record, to substantiate the statement given by Counsel for the opposite party. As such, keeping in mind the principle of law laid down in Inderjit Singh Bakshi`s case (supra), it is held that possession so offered by the opposite party vide letter dated 25.01.2016 was not a genuine offer, as by that date, completion certificate had not been obtained by it. It is therefore held that before 28.04.2017, the opposite party was not in a position to offer and deliver possession of the plot to the complainants. They were, thus, deficient in providing service, by offering possession of the plot, in question, to the complainants, in the absence of completion certificate. 

                Furthermore, the opposite party failed to apprise this Commission, as to what was the reason, that possession of the plot, in question could not be offered and delivered within the committed period. At the time of arguments, Counsel for the opposite party submitted that delay occurred, as the project which is being developed by the opposite party is very big and it took some time. We do not agree with the submission made. Once the Company has already taken benefit of grace period of six months, referred to above, then such a plea is not justified. After expiry of grace period, justification of even single day delay in offering possession, needs to be given. Furthermore, it is not the case of the opposite party that delay took place on account of any force majeure circumstances. Under these circumstances, it can safely be said that the opposite party by receiving almost the entire sale consideration, from the complainants and on the other hand, not offering and delivering possession of the plot to them, by the stipulated date and offering paper possession in the absence of completion certificate, indulged into unfair trade practice.

14.         Since it has been held above that the opposite party was at fault, in not offering possession of the plot, in question, by the stipulated date, and was ultimately offered after a huge delay of more than three years, which was taken over by the complainants during pendency of this complaint, as such, now the question, which falls for consideration, is, as to what relief can be granted to them (complainants). A similar question, came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016, wherein dealing with similar issue, it was observed as under:-

“What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Hon’ble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Hon’ble National Commission, on 06.05.2016, wherein, it was argued by the project proponent that at the maximum, as provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:-

“Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including  Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015.  Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.”

Not only this, in another case, titled as 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.”

Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice.”

Not only as above, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice.

                As such, it is held that the complainants are entitled to interest @9% p.a. as prayed by them in their complaint (though we are granting 12% in similar cases) on the entire deposited amount, towards price of the said plot, for the period of delay i.e. from 28.03.2014 (committed date) till 28.06.2017 i.e. two months from the date (28.04.2017) when completion certificate was issued in respect of the project in question.

                Besides as above, the opposite party is also liable to pay compensation to the complainants, for providing deficient service and guilty of adoption of unfair trade practice. It is also expected from the opposite party that it will get register the sale deed in respect of the plot, in question, within a reasonable time, on making payment by the complainants to the Registering Authority. 

15.          Counsel for the opposite party contended that since it was mentioned in the Allotment Letter/Agreement that the Company shall make its best efforts to deliver possession of the plot within a period of 18 months, with further grace period of six months, as such, time was not the essence of contract. The contention raised is devoid of merit. It may be stated here that once a specific period of 18 months, with extended period of 6 months was mentioned in Clause 24 (a) of the Allotment Letter/Agreement with commitment of best efforts, to complete the development/construction work, now at this stage, the opposite party cannot wriggle out of the same. Other than this Clause contained in the allotment letter, there is no Clause, which speaks about the period/date for delivery of possession of the plot, to the complainants. A clear-cut promise was made to deliver possession of the plot, within a maximum period of 24 months. As stated above, it is not the case of the opposite party that it encountered any force majeure circumstances, as a result whereof, it was legally entitled for extension of time for delivering possession of the plots to the allottees, including the complainants.

                At the time of arguments, it was also argued by Counsel for the opposite party that, as per terms and conditions of the said Allotment Letter/Agreement, when computing the above said period, Sundays, Saturdays, Bank Holidays, etc. are to be ignored. We feel that the contention raised is liable to be rejected. As stated above, in Clause 24(a) of the allotment letter, it is stated that possession will be delivered within 18 months, from the date of allotment letter, with six months’ extension. It is further stated that when computing the said period all Saturdays, Sundays and Bank Holidays will be excluded. A similar issue came up for consideration before this Commission qua another project of the opposite party, in the case of Dr.Divya Dahiya Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another, Consumer Complaint No.57 of 2016, decided on 15.07.2016, wherein, it was observed as under:-

“The first question, which falls for consideration, is, as to whether there was delay in offering possession of the plot, in question, and if so, to what extent. The allotment letter for independent floor in Row-Housing Project “Silver Birch” in the project of the Opposite Parties (Annexure C-4) was issued to the complainant on 30.08.2011. As per Clause 31(a) of the allotment letter, the Opposite Parties were to complete the development of the unit within 24 months or within an extended period of six months from the date of start of construction, subject to force majeure conditions. Since allotment letter is dated 30.08.2011, by computing 24 months plus 6 months’ period, the Opposite Parties were bound to deliver possession of the plot, in question, by 01.03.2014. The Opposite Parties have stated that period was to be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body. Apparently, for seeking six months extension beyond 24 months or beyond six months extended period, the Opposite Parties owe an explanation, if the delay was on account of force majure conditions but nothing by way of cogent evidence to this effect has been placed on record. Thus, when no explanation for extension of six months period has been furnished, the Opposite Parties at the most could be allowed one out of the two benefits i.e. either six months extension beyond 24 months or period on account of Sundays/Holidays etc. This Commission in Consumer Complaint No.153 of 2015 titled ‘Mr. Madan Lal Taneja and another Vs. M/s Omaxe Chandigarh Extension Developers P. Ltd.’ decided on 03.11.2015, facts of which were almost identical, held that Opposite Parties were to hand over possession within 30 months from the date of start of construction. Thus, the possession of the unit, in question, was to be delivered by 01.03.2014.”

 

                Similar view was reiterated by this Commission, in a case titled as Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, decided on 16.08.2016 and many other cases, thereafter. It was specifically held that when there is no explanation of getting extension of 6 months’ period to deliver possession beyond the stipulated date, the benefit of exclusion of Saturdays, Sundays, Bank Holidays etc. cannot be given. Thus, in the present case also, since as per Clause 24 (a) of the Allotment Letter/Agreement, the opposite party was bound to deliver possession of the developed plot, within a maximum period of 24 months from the date of execution of the same, as such, time was unequivocally made the essence of contract. In view of above, the plea of the opposite party in this regard stands rejected.

                At the same time, it is also submitted that the opposite party cannot evade its liability, merely by saying that since the words ‘best efforts’ were mentioned in the allotment letter, for delivery of possession of the plot, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the allotment letter/Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the plot or apartment is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

Furthermore, 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. The builder is bound to mention the exact/specific date of delivery of possession of the plots/unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

 

16.          Another objection taken by the opposite party that since the plot, in question, falls under the category of immovable property, as such, in that event also, time is not to be considered as essence of the contract, is also bereft of merit, in view of ratio of judgment titled as Saradamani Kandappan vs S. Rajalakshmi & Ors., Civil Appeal Nos. 7254-7256  of 2002 &                                      and  Contempt Petition (C) No. 28-29 of 2009, decided on 4^th  July, 2011, wherein the Hon`ble Supreme Court held as under:-

“A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by this court in K.S. Vidyanadam and Others vs. Vairavan - (1997) 3 SCC 1 (by Jeevan Reddy J. who incidentally was a member of the Constitution Bench in Chand Rani). This Court observed:

"It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect.

In the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973. .........We cannot be oblivious to the reality and the reality is constant and continuous rise in the values of urban properties - fuelled by large scale migration of people from rural areas to urban centres and by inflation.

Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so."

(emphasis supplied) Therefore there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices. We do not propose to undertake that exercise in this case, nor referring the matter to larger bench as we have held on facts in this case that time is the essence of the contract, even with reference to the principles in Chand Rani and other cases. Be that as it may.”

 

 

17.         As far as objection taken to the effect that the complaint filed is time barred, it may be stated here that since possession of the plot, in question, had not been delivered to the complainants before filing of this complaint i.e. by the date when this complaint was filed on 02.04.2018 and the same was delivered only on 21.01.2019, during pendency of this complaint, as such, the complaint filed is within limitation. In this view of the matter, objection taken stands rejected.
18.         Furthermore, deficiency in providing service and adoption of unfair trade practice, is writ large, on the part of the opposite party, with regard to time taken in execution of the Allotment Letter/Agreement. It is evident from the record, that booking amount of Rs.13.50 lacs was paid by the complainants on 06.12.2010 and thereafter, four payments amounting to Rs.3,40,000/-, Rs.2,18,000/-, Rs.2,52,000/- and Rs.7,64,747/-   was made to the opposite party till 08.02.2012. However, on receipt of huge amount, Agreement was not got signed. This Commission has held in number of cases that if Agreement/Allotment Letter is not presented for signing within a reasonable time, from the date of receipt of booking amount, it would amount to adoption of unfair trade practice on the part of a builder.  It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-

 

“The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project

aforesaid, on 16.02.2011. She was allotted unit, vide letter dated  23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer’s Agreement was not put for signing in a reasonable time, say two  to three months. She continued to make payment and when Buyer’s Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected”.

In the present case, Allotment Letter/Agreement was got signed after more than about 15 months of receipt of huge amount, referred to above. By doing so, the opposite party has indulged into unfair trade practice, in this regard, as it has utilized the said amount for the said period, without providing anything, for which the complainants are entitled to reasonable compensation.

19.         Now the question arises is, as to whether, the complainants are liable to pay any further amount to the opposite party, towards the plot, in question, and, if yes, to what extent? It is evident from the document Annexure OP-5 that total sale consideration of the plot, in question was fixed at Rs.56,58,684.94ps. as under:-

 

1. Basic cost                =      Rs.53,07,876.71
2. Club membership    =      Rs.50000/-
3. IFMS                         =      Rs.30000/-
4. PLC                          =      Rs.2,70,808.23

Total                        =      Rs.56,58,684.94ps.

 

Apart from above, it is also evident from the said document, that over and above the amount of Rs.56,58,684.94ps., the complainants were also liable to pay service tax, stamp duty and registration charges, cost towards electricity meter, water and sewerage, EDC, IDC, lease rent or any other Govt. levy.

                It is evident from the record that the complainants have already paid an amount of Rs.59,01,602.11ps. to the opposite party towards price of the said plot. The said amount cannot be disputed as the same has been made through cheques, details of which have been given in para no.5 of the consumer complaint. As such, it is held that the complainants are liable to make payment, as mentioned in the document Annexure OP-5. The opposite party shall not charge any extra amount, other than what has been mentioned in the document Annexure OP-5, from the complainants. In case, the complainants have made payment of any extra amount, adjustment shall be made accordingly, in line with the document Annexure OP-5. 

20.         No other point, was urged, by the contesting parties.
21.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite party is directed as under:-
    1. To pay compensation, by way of interest @9% p.a. (as prayed), on the entire deposited amount, to the complainants, from 28.03.2014 (committed date) till 28.06.2017 i.e. two months from the date (28.04.2017) when completion certificate was issued in respect of the project in question, within  45 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @12% p.a. instead of 9% p.a. from the date of default, till realization.
    2. To pay compensation, in the sum of Rs.1,00,000/-, on account of mental agony, physical harassment, caused to the complainants, deficiency in providing service and adopting unfair trade practice, within  45 days,  from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @10% p.a., from the date of filing this complaint till realization.
    3. To pay compensation, in the sum of Rs.1 lac, for adopting unfair trade practice, by not getting the Allotment Letter/Agreement signed within a reasonable period, after receiving substantial amount from the complainants, as indicated above, within  45 days,   from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @10% p.a., from the date of filing this complaint till realization.
    4. To pay cost of litigation, to the tune of Rs.33,000/- to the complainants, within  45 days, from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @10% p.a., from the date of filing this complaint till realization.
22.         Certified Copies of this order be sent to the parties, free of charge.
23.         The file be consigned to Record Room, after completion.

Pronounced.

10.06.2019

 

Sd/-

 (JUSTICE JASBIR SINGH (RETD.)

PRESIDENT

 

 

Sd/-

 

 (PADMA PANDEY)

        MEMBER

 

 

Sd/-

 

(RAJESH K. ARYA)

MEMBER

 

 

 Rg.