Chandigarh

StateCommission

CC/292/2017

Vijay Chaudhary - Complainant(s)

Versus

Puma Realtors Private Limited - Opp.Party(s)

Gaurav Bhardwaj, Adv.

31 Oct 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	292 of 2017
Date of Institution	:	05.04.2017
Date of Decision	:	31.10.2017

 

Vijay Chaudhary S/o Sh. R. D. Chaudhary R/o H.No.707, Saini Vihar, Phase-2, Baltana, Zirakpur, Punjab.

 

……Complainant

V e r s u s

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

….. Opposite Parties.

Argued by: Sh. Gaurav Bhardwaj, Advocate for the complainant.

                 Sh. Ramnik Gupta, Advocate for the Opposite Parties.

 

Complaint case No.	:	313 of 2017
Date of Institution	:	10.04.2017
Date of Decision	:	31.10.2017

 

1. Mr. Sourabh Ghosh S/o Sh. Prokash Chandra Ghosh, Aged about 44 years,
2. Smt. Himika Ghosh W/o Sh. Sourabh Ghosh, Aged about 41 years,

Both residents of Flat No.35, Sangam Enclave, Sector 48-A, Chandigarh, U.T., 160047.

 

……Complainants.

V e r s u s

1. M/s. Puma Realtors Private Ltd., SCO No.6-8, 1^st & 2^nd Floors, Sector 9-D, Madhya Marg, Chandigarh – 160009 through its Chairman/Managing Director.
2. The Chairman/Managing Director, Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st & 2^nd Floors, Sector 9-D, Madhya Marg, Chandigarh. (Name of Opposite Party No.2 deleted vide order dated 04.05.2017).
3. M/s Puma Realtors Private Ltd., SCO No.6-8, 1^st & 2^nd Floors, Sector 9-D, Madhya Marg, Chandigarh – 160009 through its Director(s).
4. M/s Puma Realtors Private Ltd., SCO No.6-8, 1^st & 2^nd Floors, Sector 9-D, Madhya Marg, Chandigarh – 160009 through its Authorised Signatory Ms. Sunaina Minhas, D/o Maj. Arbinder Minhas.

Second Address:

Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi – 1100741.

….. Opposite Parties.

Argued by: Sh. Dinesh Kumar Chaudhary, Advocate for the complainants.

                 Sh. Ramnik Gupta, Advocate for Opposite Parties No.1, 3 & 4.

Name of Opposite Party No.2 deleted vide order dated 04.05.2017.

 

Complaint case No.	:	378 of 2017
Date of Institution	:	03.05.2017
Date of Decision	:	31.10.2017

 

Dr. Amit Khurana, aged about 46 years, son of Sh. Som Nath Khurana R/o House No.52, Kesar Bagh Colony, Near NIS, Patiala.

 

……Complainant

V e r s u s

1. Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), having its Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh through its Managing Director.
2. The Managing director, Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074. (Opposite Party No.2 deleted vide order dated 02.06.2017)

….. Opposite Parties.

Argued by: Sh. Vivek Suri, Advocate for the complainant.

                 Sh. Ramnik Gupta, Advocate for Opposite Party No.1.

                 Name of Opposite Party No.2 deleted vide order dated 02.06.2017.

 

Complaint case No.	:	379 of 2017
Date of Institution	:	03.05.2017
Date of Decision	:	31.10.2017

 

Naveen Setya aged about 37 years S/o Sh. Sudershan Setya R/o C-608, CGHS Limited, Sector 9, Rohini, Delhi at present resident of 5307 Catclaw CT Neperville, IL 60564 through his special power of attorney Kapil Madaan aged about 46 years s/o Sh. H. K. Madaan, resident of B-32, Multi tech, Sector 91, Mohali.

 

……Complainant.

V e r s u s

1. Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), having its Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh through its Managing Director.
2. The Managing director, Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074. (Opposite Party No.2 deleted vide order dated 02.06.2017)

….. Opposite Parties.

Argued by: Sh. Vivek Suri, Advocate for the complainant.

                 Sh. Ramnik Gupta, Advocate for Opposite Party No.1.

                 Name of Opposite Party No.2 deleted vide order dated 02.06.2017.

 

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

 

BEFORE:   MR. DEV RAJ, PRESIDING MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

 

PER DEV RAJ, PRESIDING MEMBER

            After hearing arguments on 24.10.2017, it was agreed between the Counsel for the parties that the facts involved in the above four complaints, by and large, are the same and therefore, the aforesaid complaints can be disposed of, by passing one consolidated order. To dictate order, facts are being taken from complaint bearing No.292 of 2017, titled as ‘Vijay Chaudhary Vs. Puma Realtors Private Limited & Anr.’.

2.         The facts, in brief, are that since the complainant was looking for a flat for himself and his family including parents, he approached the sales staff of the Opposite Parties for purchase of a flat in their project, namely, IREO RISE. He applied for one unit No.GBE-03-001 i.e. Apartment No.001, Third Floor, Gardenia Block E Tower, in Sector 99, SAS Nagar, Mohali by paying Rs.4,05,000/- on 23.06.2011 and Rs.2,46,118/- on 14.11.2011 vide receipts Annexures C-1 & C-2. An Apartment Buyer’s Agreement dated 15.07.2011 (Annexure C-3 colly.) regarding the aforesaid flat having super area of 1562 sq. ft. with 1 parking space was signed between the parties, the total basic sale price of the flat was Rs.48,82,860/- @Rs.3,126.03 per sq. ft. Besides that, EDC @Rs.100/- per sq. ft. of super area was also to be paid by the complainant. Subsequently, the complainant paid the following amounts vide receipts (Annexures C-4 to C-11) to the Opposite Parties:-

Sr. No.	Date of payment	Amount paid (Rs.)
1.	15.09.2011	450773.00
2.	10.03.2012	539909.00
3.	29.11.2012	542424.00
4.	08.05.2013	542424.00
5.	03.08.2013	542424.00
6.	07.10.2013	548174.00
7.	30.04.2014	548174.00
8.	22.05.2014	559250.00
	Total:	4273552.00

 

Thus, the complainant paid a total sum of Rs.49,24,670/- to the Opposite Parties. The complainant also availed loan facility from Canara Bank, Sector 14, Chandigarh. It was stated that one installment was delayed by three months and the Opposite Parties charged interest @15% for that delayed period also.

3.         As per Clause 13.3 of the Agreement, possession of the unit, in question, was to be handed over within 30 months from the date of the said Agreement, which stood expired on 15.01.2014. It was further stated that there was a willful, intentional delay of more than 38 months from the cutoff date and till date, possession has not been offered. It was further stated as per Clause No.20 of the said Agreement, time was essence in making payment of installments and as per Clause 13.4, the Company was liable to pay delay compensation @Rs.7.50 per sq. ft. per month in the event of delay in handing over possession, which came to be Rs.12,067.50 per month. It was further stated that the Opposite Parties were trying to justify the delay in offering possession under the garb of Clause 13.4, which is most inadequate and meaningless considering the fact that the complainant has paid Rs.49,24,670/- upon which, interest @12% and 15% per annum comes to Rs.49,246.70 and Rs.61,558/- per month and, therefore, Clause 13.4 does not safeguard the interest of the complainant. It was further stated that after having made more than 100% of payment, the Opposite Parties failed to offer/deliver possession of the apartment, in question till date. It was further stated that Larsen & Tubro Company had been withdrawn and some new construction company namely M/s Akalia Constructions was engaged. It was further stated that after engaging the new construction company, the development/construction work at the site has come to a standstill. It was further stated that the amenities/facilities, as promised in the Agreement, like multipurpose hall, swimming pool, gym, badminton and basket ball courts, kids play area and jogging track etc. have not even been started to be developed in the project.

4.         The grievances expressed by the complainant in Para 16 of his complaint, related to unilateral change of contract from L&T to M/s Akalia Construction; delay in offering possession; not constructing drop road till the tower, in question; proposing to offer possession without completing the amenities; unilateral construction of approximately 70 flats by making flats over the existing towers.

5.         It was stated that modular kitchen was promised but only cupboards in the lower portion of the modular kitchen have been provided and not in the upper portion. It was further stated that Split AC fittings were to be provided in all the rooms including bedroom but the Opposite Parties backed out from their commitment and are providing Split AC fitting only in the living room. It was further stated that the acts of the Opposite Parties amounted to deficiency, in rendering service and indulgence into unfair trade practice.

6.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties to hand over possession of the apartment, in question with all amenities as promised in the Agreement; pay interest @15% on the deposited amount; pay compensation for delayed possession as per Clause 13.4 of the Agreement; pay Rs.10,00,000/- as compensation on account of harassment, mental agony etc.; provide electricity, water and sewerage from the Govt.; provide complete modular kitchen with lower and upper cupboards and also provide Split ACs provision in all the rooms besides Rs.55,000/- as litigation charges.

7.         The Opposite Parties, in their written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.34 in the Apartment Buyer’s Agreement dated 15.07.2011; that since the present complaint related to enforcement of an agreement to sell/purchase of a residential apartment i.e. an immovable property and hence, was not covered under the Act; that the complainant is not a consumer, as he neither   bought the goods nor availed/hired any services of the Opposite Parties, as the parties did not enter into any contract for hiring the services; that this Commission has no territorial jurisdiction on account of existence of Clause 36 in the Agreement and that the relief claimed is beyond Section 14(1)(d) of the  1986 Act. 

8.         On merits, it was stated that the consideration price of the unit, in question, at the time of execution of the Agreement, was Rs.52,11,654/-, which was inclusive of basic sale price @Rs.3126.03 per sq. ft., IFMS @Rs.30/- per sq. ft. and EDC @Rs.100/- per sq. ft. It was further stated that on account of revision in service tax, the consideration price of the unit, in question, as on date, is Rs.52,32,195.84 as per statement of account (Annexures OP-7 & OP-8). It was further stated that in terms of Clause 13.4 of the Agreement, the complainant duly agreed to receive liquidated damages from the end of the grace period i.e. 30 months plus 6 months, till possession is actually offered.  It was further stated that the complainant vide Clause No.13.3 of the Agreement agreed that the starting period for 30 months shall be date of the said Agreement or approval of the building plans and/or fulfillment of precondition imposed thereunder, which ever was later. It was further stated that building plans were approved on 18.01.2012 (Annexure OP-10) and that being so, the starting period for 30 months would not be the date of the said Agreement but would be 18.01.2012. It was further stated that possession of the unit, in question, was offered to the complainant vide notice of possession dated 30.06.2017 dispatched on 20.07.2017 (Annexure OP-2 colly.). It was further stated that the Opposite Parties applied for occupation certificate in August 2016 and Partial Completion Certificate was issued by the competent authorities on 30.06.2017 (Annexure OP-3).

9.         It was further stated that as agreed between the parties, in case of failure of the Opposite Parties to deliver possession within aforesaid period of 36 months, the complainant was entitled to the liquidated damages @Rs.7.50 per sq. ft. per month till possession of the apartment was actually offered. It was further stated that the delay compensation @Rs.7.50 per sq. ft. of the super area was to be adjusted and reduced from the last and final installment.

10.       It was further stated that the Opposite Parties engaged L&T, one of the reputed construction company, for construction of the project in order deliver best in class project to its customers and the said L&T Company had carried out majority of the development work but having found delay on the part of the said construction company, M/s Akalia Constructions (a sub-contractor of L&T) was appointed for undertaking the finishing works of the Juniper Block & Firangipani Block only and not the Gardenia Block where the complainant was allotted apartment. It was further stated that the entire construction work of the apartment, in question, has been done by L&T only. It was further stated that the Opposite Parties never proposed to offer possession of the apartment without completing the amenities. It was further stated that update letter dated 30.12.2015 regarding left over work by Akalia Construction has been attached with the written statement as Annexure OP-11. It was further stated that the Opposite Parties are in the process of obtaining approvals for additional areas, as agreed under Clauses 9.10 and 21.3 (in fact 10.10 and 22.3) of the Agreement.

11.       It was further stated that the Opposite Parties vide application dated 26.11.2013 applied for approval of electrical layout plan and grant of NOC to the PSPCL after submitting requisite details and PSPCL duly granted NOC dated 08.07.2015. It was further stated that the Chief Electrical Inspector to Govt. of Punjab approved the electrical installations laid in the project for commission of the same vide its NOC dated 07.08.2015. It was further stated that the Opposite Parties duly applied online vide RID No.15250 dated 27.08.2015 for the release of electric connection for the IREO Rise Project and PSPCL duly granted feasibility clearance dated 20.11.2015 for release of load/connection on the project. It was further stated that the Opposite Parties have already deposited Bank Guarantee dated 22.3.2015 for R.3,24,10,301/- plus Rs.2.97 Lacs towards Advance Consumption Deposit on 12.4.2016 in compliance to demand notice dated 28.12.2015. It was further stated that all formalities have been duly complied with and no dues remain to be paid or deposited on the part of the Opposite Parties towards energization of the electrical connection by PSPCL.

12.       It was further stated that the Opposite Parties have already constructed underground water tanks duly connected with the approved bore well, which have further been connected to the overhead tanks of each tower with pumping system to supply the water for domestic use. It was further stated that the Opposite Parties have already constructed and installed underground STP for the disposal of the sewage. It was further stated that it was nowhere agreed that modular kitchen comprising of both upper and lower portion would be provided. It was further stated that there was no agreement to provide Split AC fittings in all the rooms, rather on the contrary, said Agreement provides for provision for Split AC. It was further stated that the Opposite Parties have made provision for ACs in all the rooms. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

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

14.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Rajiv Bhatia, their Authorised Representative, by way of evidence, alongwith which, a number of documents were attached. 

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

16.       It is evident, on record, that the complainant was allotted Apartment No.001, Category General on Third Floor, Gardenia Block, Tower-E Type in Group Housing Colony known as “Ireo Rise”, situated in Sector 99, SAS Nagar, Mohali, having tentative super area of 1562 sq. ft. (145.10 sq. mtrs.) together with 1 no. parking space, forming indivisible part thereof and Apartment Buyer’s Agreement was executed between the complainant and the Opposite Parties on 15.07.2011 (Annexure   C-3 colly.). As per Annexure-IV, Payment Plan (at Page 157 of the written statement), the basic sale price of the unit was Rs.48,82,860/- besides External Development Charges (EDC) Rs.1,56,200/-, IFMS charges Rs.46,860/-. Thus, the total sale consideration of the unit, in question, as per aforesaid payment plan, including service tax (Rs.1,25,734/-), is Rs.52,11,654.00 (Annexure OP-4 at Page 157 of written statement). The payment against the aforesaid unit was to be regulated as per aforesaid Payment Plan, Annexure IV. The complainant made payment in the sum of Rs.49,30,207.00 as is apparent from latest accounts statement (Annexure OP-8). In terms of Clause 13.3 of the Agreement since building plans were approved on 18.01.2012, 30 months period for handing over possession, expired on 17.07.2014. Possession of the unit, in question, has been offered to the complainant by the Opposite Parties on vide notice of possession dated 30.06.2017 (dispatched on 20.07.2017) (Annexure OP-2 colly.) i.e. during the pendency of the instant complaint.  As regards deficiency in promised amenities viz. multipurpose hall, swimming pool, gym, badminton and basket ball courts, kids play area and jogging track etc., the Opposite Parties have categorically stated in their written statement that they will provide all the amenities.

            Regarding apprehension of the complainant in Para 16(h) of the compliant that the Opposite Parties shall keep on supplying electricity on exorbitant rates, they (Opposite Parties) in their written statement have categorically stated that they applied for approval of the electrical layout plan and grant of NOC to the PSPCL. It has been further stated that on 08.07.2015, electrical installations were approved and they have already deposited Bank guarantee for an amount of Rs.3,24,10,301/- and an amount of Rs.2.97 Lacs towards Advance Consumption Deposit. As such, no deficiency on this account is attributable to the Opposite Parties.

17.       Action of the Opposite Parties in raising construction/floors on the tower, where the apartment allotted to the complainant is situated, is as agreed under Clause 10.10 and 22.3 of the Apartment Buyer’s Agreement.

18.       The complainant has not stated as to how change of contract from L&T to M/s Akalia Constructions caused prejudice to him. The Opposite Parties have specifically stated that L&T had completed majority of development work and it was to avoid delay that Akalia Constructions (a Sub-contractor of L&T) was appointed for finishing works of Juniper Block & Firangipani Block and not the Gardenia Block where complainant was allotted apartment. The objection of the complainant is, therefore, devoid of merit. Further during arguments, Counsel for the complainant did not press the issues relating to change of contract from L & T to M/s Akalia Constructions and provision for the electricity, water and sewerage.

19.        The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause No.34 in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, noted that litigation in the Consumer Fora is cost effective. The complaint in the State Commission can be filed by making payment between Rs.2,000/- to Rs.4,000/- only. Whereas, as per principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of arbitrator’s fee. As per mandate of 1986 Act, a complaint is proposed to be decided within three months from the date of service of the other party. On the other hand, it is admissible to an Arbitrator to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it was observed that if the matter is referred to an Arbitrator, it would defeat the very purpose of the provisions of 1986 Act. Paras 26, 33 and 34 of the said order, inter-alia, being relevant, are extracted hereunder:-

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

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

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

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

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

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

            Same is the ratio of recent judgment passed by Hon’ble National Commission on 13.07.2017 in case titled ‘Aftab Singh & Ors. Vs. Emaar MGF Land Ltd. & Anr.’ III (2017) CPJ 270 (NC).

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

20.         Another objection raised by Counsel for the Opposite Parties was that since the complainant did not buy goods and did not hire any services, and was seeking enforcement of the Agreement in respect of immovable property, therefore, only a Civil Court can decide the complaint, and consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the unit, in question, in the manner, referred to above. According to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to hand over possession of the apartment, in question, within a period of thirty months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment of the preconditions, whichever is later (commitment period).  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 Act provides an alternative remedy. Even if, it is assumed that the complainant has remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he falls within the definition of ‘consumer’, as stated above. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

21.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident from Clause 33 of the Agreement, that the parties had agreed that “Hence this Agreement shall be deemed to have been executed at Chandigarh even if the Proposed Allottee has prior thereto executed this Agreement at any place(s) other than Chandigarh”, meaning thereby that the Agreement in question, was deemed to be signed/executed at Chandigarh. Not only this, receipts dated 23.06.2011, 14.07.2011, 15.09.2011, 10.03.2012, 29.11.2012, 08.05.2013, 03.08.2013, 07.10.2013, 30.04.2014 and 22.05.2014 (Annexures C-1, C-2 and C-4 to C-11 respectively) were issued by Opposite Party No.1 to the complainant, from its Chandigarh Office i.e. SCO 6-7-8, 1st & 2nd Floors, Sector 9-D, Chandigarh. Since, as per Clause 33 of the Agreement and the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.

22.         No doubt, in the written version, an objection was also taken by the Opposite Parties, that as per Clause 36 of the Agreement, the Courts at Mohali and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

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

24.       The next question, which falls for consideration, is, as to whether the construction of approximately 70 flats over the existing tower(s) by the Opposite Parties is at the cost of existing common facilities/amenities and against the agreed terms and conditions. Relevant clauses 22.3 and 10.10 in the Apartment Buyer’s Agreement read as under:-

“22.3      The Proposed Allottee agrees that the Company shall be entitled to connect the electric, water, sanitary and drainage fittings on any additional structures/storeyes with the existing electric, water, sanitary and drainage fittings. The Proposed Allottee further agrees and undertakes that it shall not at any time before or after taking possession of the said Apartment, have any right to object to the Company constructing or continuing with the construction of any other building(s)/ structures in IREO-RISE or putting up additional floors to any of the exiting towers/ Buildings in IREO-RISE or undertaking modification of any unsold apartment/units/ areas therein. The Proposed Allottee further agrees that it shall not claim any compensation or withhold the payment of maintenance and other charges, as and when demanded by the Company on the ground that the infrastructure required for IREO-RISE is not yet complete, or on any other ground whatsoever.

 

10.10     The Proposed Allottee hereby expressly agrees and consents that the Company shall have the absolute right to make additional construction, whether on account of increase in FAR or better utilization of the said Land or for any other reason anywhere in IREO-RISE, to the extent permissible by the government or the Competent Authority under the Act. The Company shall have the absolute and unfettered right to transfer such additional construction in any manner whatsoever as the Company may in its absolute discretion think fit. The Company and its transferees of such additional construction shall have the same rights as the Proposed Allottee with respect to IREO-RISE including the right to be member of the Society of Apartment Owners to be formed under the Apartment Act (“RWA”) and the right to use of the Common Areas and other common amenities of IREO-RISE.”

 

            In view of aforesaid, we are inclined to agree with the Opposite Parties that construction of additional flats is in accordance with the specific provision in the Apartment Buyer’s Agreement. The objection of the complainant is, therefore, not tenable. The Opposite Parties are entitled to raise construction of additional flats in terms of provisions in the agreement.

25.       The next question, which falls for consideration, is, as to whether the Opposite Parties, by not providing Split AC fittings in all rooms including bedrooms and complete modular kitchen, were deficient in rendering service. As per Annexure I, the Opposite Parties were to make provision for Split AC and modular kitchen. The provision and specifications, so mentioned in Annexure-I appended to the Agreement, at Pages 153 and 154 of the written statement, qua the aforesaid two facilities, are extracted hereunder:-

KITCHEN	MODULAR KITCHEN	Fitted modular Kitchen, SS Sink, CP fittings, provision for RO system, built-in hob/chimney.
	COUNTERTOP	Granite
AIR CONDITIONING		Provision for Split AC in all bedrooms, drawing & dining room.

 

Admittedly, the provision in accordance with the specifications in the Apartment Buyer’s Agreement was not made. It was argued on behalf of the Opposite Parties that it was nowhere agreed that modular kitchen comprising both upper and lower cabinets/cupboards was to be provided, and that it was nowhere mentioned that portion above the working slab is a must for a modular kitchen. The Opposite Parties cannot draw their own conclusion that modular kitchen would be complete, even if the cup-boards are provided only below the slab. Had it been so mentioned in the specifications, the position would have been different. When it is clearly mentioned that modular kitchen is to be provided, it would mean modular kitchen with cup-boards below and above the slab. The Opposite Parties have also failed to clarify, why the provision of Split AC was not made. Thus, the Opposite Parties are liable to provide modular kitchen with cup-boards upper the slab also and so also the provision for split AC in the bedrooms and drawing & dining room.

26.       The next question, which falls for consideration, is, whether the alleged unilateral act of non-constructing of the drop road is an act of deficiency on the part of the Opposite Parties. They (Opposite Parties), in their written statement have categorically denied the allegation of non-construction of the drop road, in question. It has been submitted that the Opposite Parties have already constructed all the roads as per the approved layout plan and accordingly, have applied for issuance of the occupation certificate of the apartment, in question. In view of specific averment of the Opposite Parties, no deficiency on this account can be attributed to them at this stage.

27.       The next question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainant. As stated above, according to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment  of   the   preconditions   whichever   is   later (commitment period). The building plans were approved on 18.01.2012 as is evident from Annexure OP-10 i.e. after execution of Buyer’s Agreement on 15.07.2011. Computing 30 months from 18.01.2012, commitment period for handing over possession was up-to 17.07.2014. On account of force majeure circumstances, referred to in the Agreement, the Opposite Parties were entitled to advantage of 180 days grace period after the expiry of commitment period, for unforeseen delays in obtaining the Occupation Certificate etc. from the Competent Authority. In the instant case, the Opposite Parties applied for the Occupation Certificate in August 2016 i.e. after expiry of 180 days grace period and only partial completion certificate has been received by them on 30.06.2017 (Annexure OP-3). Therefore, in absence of any cogent evidence or justification to seek extension of 180 days by the Opposite Parties, they are not entitled to advantage of 180 days grace period. Further, advantage of 180 days grace period would have been admissible to the Opposite Parties, had they applied for the occupation certificate during the aforesaid period of 180 days. Possession of the unit, in question, has been offered to the complainant vide letter dated 30.06.2017 despatched on 20.07.2017, as stated by the Opposite Parties in the written statement, i.e. even after expiry of extended delay period of 12 months and during the pendency of the instant complaint. The Opposite Parties were duty bound to hand over possession within 30 months i.e. by 17.07.2014. The possession having been offered on 20.07.2017, there is clear delay of more than three years in delivering possession. The Counsel for the Opposite Parties argued that considering the fact that complainant is seeking compensation under Clause 13.4, the due date for possession is to be taken as 30 months + 6 months i.e. 17.01.2015 and not 17.07.2014. It may be stated here that the complainant is not being granted any compensation under Clause 13.4 and the complainant while seeking compensation has not sought the same w.e.f. 17.01.2015. The plea being devoid of merit stands rejected. By making a misleading  statement, that possession of the unit, was to be delivered within the period as discussed above, and by not abiding by the commitment made, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.

28.       In the offer of possession letter dated 30.06.2017 (dispatched on 20.07.2017), the complainant was given 45 days time to make payment of Rs.12,225.49 and for completion/submission of documents and upon the complainant doing so, the Opposite Parties were to take another 30 days for final touches/finishing works in the apartment. Thus, the delay in delivering possession would come up-to (20.07.2017 + 45 days + 30 days) 03.10.2017.

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

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

9.      xxxxxxxxxxxxx

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

(1)         xxxxxxxxxxxxxx

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

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

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

31.       Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the case, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 18.07.2014, till 03.10.2017, would meet the ends of justice. However, since the Opposite Parties, while offering possession, gave credit of Rs.3,49,107.00 on account of delayed compensation, this amount shall be reduced from the compensation amount arrived at by granting 12% interest on the deposited amount(s) for the delay period.

32.            The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to him, by not delivering physical possession of the unit to him, by the Opposite Parties, by the promised date in the Agreement i.e. by 17.07.2014. Counsel for the Opposite Parties argued that in absence of any allegation by the complainant that he suffered loss, compensation under Section 14(1)(d) of the Act cannot be granted. Reliance placed on case titled as “Godfrey Phillips India Ltd. Vs. Ajay Kumar”, AIR 2008 SC 1828 is of no help to the Opposite Parties for the reasons given hereinafter. In the case relied upon, the complainant had stated in his complaint that he had filed a complaint in the public interest and there was no prayer for any compensation. In the complaint in hand, the complainant has specifically prayed for compensation of Rs.10 Lacs on account of mental agony and harassment. The complainant purchased the unit, with the hope to have a roof over his head alongwith family members  but his hopes were dashed to the ground. Possession of unit, in question, has been offered to him (complainant) during the pendency of the instant complaint on 30.06.2017 vide notice of possession (Annexure OP-2 colly.) dispatched on 20.07.2017. The complainant, thus, underwent a lot of mental agony and harassment, on account of the acts of omission and commission of the Opposite Parties. Had the possession been offered to the complainant by the date stipulated in the Agreement i.e. 17.07.2014, he would have been in a position to utilize the same. Delay of more than three years in delivering possession is a clear act of deficiency on the part of the Opposite Parties and loss to the complainant. However, argument of the Opposite Parties that the compensation in the sum of Rs.10 Lacs claimed by the complainant is on the higher side carries weight. Considering the fact that the complainant has been adequately compensated by granting interest @12% per annum on the deposited amount for the delay period, coupled with the fact that he (complainant) will also get the benefit of escalation in the price of unit, in question, compensation, on account of mental agony and harassment, caused to the complainant, if granted, to the tune of Rs.1,50,000/- shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

33.       In two connected consumer complaints bearing Nos.378 and  379 both of 2017, on 02.06.2017, Sh. Rohit Tanwar, AGM (Legal), who put in appearance on behalf of Opposite Party No.1 stated that there was no post of Managing Director in the Company (Puma Realtors Private Ltd.) and faced with this situation, Counsel for the complainant(s) stated that let the name of Opposite Party No.2 be deleted from the array of the parties. Objection qua this fact was also in the opening para of the written statements filed in these cases. Accordingly, the name of Opposite Party No.2 was deleted from the array of the parties in both the complaints vide orders dated 02.06.2017.

34.       In consumer complaint bearing No.378 of 2017, Opposite Party No.1 has taken a specific objection in Para 4, on merits, that the apartment, in question, was purchased by the complainant neither for his personal use nor for settling his children alleged to be students. It was stated that the purpose mentioned for purchasing the allotment rights of the apartment are bald, vague, incomplete and afterthought and the complainant is not a consumer. It was stated that the complainant owns and possesses a residential house bearing No.52, Kesar Bagh Colony near NIS, Patiala, where he is gainfully employed and is permanently settled alongwith his family and the purpose so stated by him in the complaint cannot be relied upon for want of material particulars. The Counsel for Opposite Party No.1 also placed reliance on case titled “Manohar Damecha Vs. Lavasa Corporation Limited”, Consumer Case No.1326 of 2015 decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 01.02.2016. In the aforesaid case, the complainant owned four plots, one shop (Market) & one villa including garage and servant’s quarter in Pune, Maharashtra and one Plot in Dharmapuri, Tamil Nadu. The Hon’ble National Commission held that by no stretch of imagination, it can be held that 6^th house was purchased exclusively for the purpose of livelihood by means of self-employment of the complainant. However, in the instant case, the complainant, being resident of Patiala, got the flat, in question, in the project of Opposite Party No.1, on re-allotment from previous allottee, Mrs. Savita Dhingra, who assigned the rights in the apartment in favour of the complainant vide letter dated 21.11.2012. The plea of the complainant that the unit, in question, was purchased by him to settle his children is well based and acceptable in the facts and circumstances of the case. The facts of Manohar Damecha Vs. Lavasa Corporation Limited’s case (supra), relied upon by Opposite Party No.1 are distinguishable on facts, as in that case, 4-5 units were owned by the complainant. The objection raised by Opposite Party No.1 is, therefore, not sustainable and the same stands rejected. It may be stated here that in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, 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 above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited”, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of 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 objection raised, being devoid of any substance, stands rejected.

35.       In this complaint viz. CC/378/2017, since Apartment Buyer’s Agreement was executed on 19.01.2012 i.e. a day after approval of building plans relating to this project on 18.01.2012, therefore, computing 30 months from the date of execution of the Agreement i.e. 19.01.2012, the possession of the unit, in question, was to be delivered by Opposite Party No.1 by 18.07.2014 but the same was offered on 30.06.2017 vide notice of possession letter dispatched on 21.07.2017 (proof of dispatch at Page 188 of the written statement), during the pendency of the instant complaint. For the reasons assigned in Consumer Complaint bearing No.292 of 2017, the complainant, in this case, is also entitled to the same relief i.e. interest @12% on the deposited amount w.e.f. 19.07.2014, till 04.10.2017. However, since Opposite Party No.1, while offering possession, gave credit of Rs.3,59,611.50 on account of delayed compensation, this amount shall be reduced from the compensation amount arrived at by granting 12% interest on the deposited amount(s) for the delay period. The complainant is also held entitled to compensation of Rs.1,50,000/-. 

36.       In consumer complaint bearing No.379 of 2017, besides other preliminary objections, which have already been settled in the preceding part of the judgment, Opposite Party No.1 has raised an objection that the complaint filed through Special Power of Attorney is not maintainable and the same is liable to be dismissed in as much as the same does not have the legal enforceability to confer any power upon Mr. Kapil Madaan, Special Power of Attorney Holder of the complainant, to file the present complaint. It may be stated here that this issue has already been dealt with by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled “Consumer Education & Research Society &Anr v/s New India Assurance Co Ltd & Ors” [I (2008) CPJ 317 (NC), wherein it was held that an over-technical view should not be taken by the Fora and a consumer complaint can even be filed by the parent of an aggrieved person or his Power of Attorney holder. Therefore, in view of ratio of aforesaid judgment of Hon’ble National Commission, the objection raised, being not sustainable in the eyes of law, stands rejected.

37.       In complaint (CC/379/2017), computing 30 months from the date of approval of building plans i.e. 18.01.2012, the possession of the unit, in question, was to be delivered by Opposite Party No.1 by 17.07.2014 but the same was offered on 30.06.2017 vide notice of possession letter dispatched on 21.07.2017 vide proof of dispatch at Page 189 of the written statement, during the pendency of the instant complaint. For the reasons assigned in Consumer Complaint bearing No.292 of 2017, the complainant, in this case, is also entitled to the same relief i.e. interest @12% on the deposited amount w.e.f. 18.07.2014, till 04.10.2017. However, since Opposite Party No.1, while offering possession, gave credit on account of delayed compensation in the sum of Rs.3,49,107.00, the same shall be reduced from the compensation amount arrived at by granting 12% interest on the deposited amount(s) for the delay period. The complainant is also held entitled to compensation of Rs.1,50,000/-. 

38.       In Consumer Complaint bearing No.313 of 2017, on 04.05.2017, Sh. Ramnik Gupta, Advocate who put in appearance on behalf of Opposite Parties No.1, 3 & 4 stated that there was no post of Chairman or Managing Director of Puma Realtors Private Ltd. (Company) and faced with this situation, Counsel for the complainants stated that let the name of Opposite Party No.2 be deleted from the array of the parties. Objection qua this fact has also been made in the opening paras of the written statement. The name of Opposite Party No.2 already stands deleted from the array of the parties.

39.       In this complaint viz. CC/313/2017, the complainant has sought possession of the apartment, in question, and an alternative prayer for refund of the deposited amount has also been made. The possession of the unit, in question, has still not been offered. No firm date could be given by the Counsel for Opposite Parties No.1, 3 & 4. Not only this, even occupation certificate has not been received. At the time of arguments on 24.10.2017, Counsel for the complainants restricted his prayer for alternate relief for refund of the deposited amount alongwith interest, compensation etc. The complainant has deposited an amount of Rs.47,74,021.73 as is proved from Statement of Account (Annexure OP-9).

40.       The core question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainants and whether the complainants are entitled to seek refund of the amount deposited by them alongwith interest. It may be stated here that as per Clause 13.3 of the Apartment Buyer’s Agreement dated 25.10.2011 (Annexure C-5), subject to force majeure conditions and reasons, beyond the control of Opposite Parties No.1, 3 & 4, they were liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment of the preconditions imposed thereunder whichever was later. As is evident from Annexure OP-14, the building plans were approved on 18.01.2012 after 25.10.2011 when agreement was executed; 30 months period for delivering possession expired on 17.07.2014. On account of force majeure circumstances, referred to above, Opposite Parties No.1, 3 & 4 were entitled to advantage of 180 days grace period after expiry of 30 months. No cogent evidence or justification for seeking advantage of 180 days grace period has been placed on record by Opposite Parties No.1, 3 & 4. The Opposite Parties even did not apply for occupation certificate during the aforesaid period of 180 days. The fact remains that even after expiry of grace period of 180 days, Opposite Parties No.1, 3 & 4 failed to offer/deliver possession of the unit, in question, to the complainants. Clause 13.4 of the Agreement envisages that in case of delay beyond the period as referred to above, in handing over possession, Opposite Parties No.1, 3 & 4 shall be under obligation to pay penalty amount for the delayed period. Computing 30 months from the date of approval of building plans, on 18.01.2012, at the maximum, possession was to be delivered to the complainants by 17.07.2014. Even if, it is accepted that Opposite Parties No.1, 3 & 4 are entitled to further 12 months of extended delay period, as per Clause 13.5 of the Agreement, date of handing over possession come to an end on 17.01.2016. The complainants have placed on record an email dated 31.12.2015 (Annexure C-16), whereby Opposite Parties No.1, 3 & 4  informed that “…..We anticipate to start offering of possession before the end of June 2016 and the handover shall be in a phase wise manner.” It is an admitted fact that possession of the unit, in question, has not been offered, by the date of filing the instant complaint, or even till date, for want of completion of unit and basic amenities at the site despite the fact that the complainants had already paid an amount of Rs.47,74,021.73 as against the sale consideration of Rs.50,66,406.58. 

41.       Opposite Parties No.1, 3 & 4 failed to abide by their commitment to offer possession of the unit, in question, as per Agreement and as committed in Annexure C-16. The complainants cannot be made to wait indefinitely.  No doubt, Opposite Parties No.1, 3 & 4 have admitted, in its written statement, that it is in the process of obtaining the occupation certificate and possession, complete in all respects, of the apartment, in question, shall be handed over in the near future, yet, it failed to place, on record, any cogent and convincing evidence, with regard to date, by which, construction of the unit is going to be complete. Opposite Parties No.1, 3 & 4 were duty bound to hand over possession within 30 months   i.e. by 17.07.2014 or after grace period of 180 days. Counsel for Opposite Parties No.1, 3 & 4 could not give any firm date, by which Opposite Parties No.1, 3 & 4 would be handing over possession. Clearly there is delay in delivering possession. By making a misleading   statement, that possession of the unit, was to be delivered within the maximum period of 30 months from the date of execution of the Agreement/approval of building plans and within further extended period of 180 days and thereafter during the extended delay period of 12 months, and by not abiding by the commitment made, they (Opposite Parties No.1, 3 & 4) were not only deficient, in rendering service, but also indulged into unfair trade practice. Non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement, on the part of Opposite Parties No.1, 3 & 4. This Commission in 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, relying upon the judgments rendered by the Hon’ble National Commission, ordered refund to the complainant 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. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015 decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder while holding as under:-

“I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant 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 alongwith reasonable compensation, in the form of interest.”

 

              In view of the above, it is held that since there was a material violation on the part of Opposite Parties No.1, 3 & 4, in not handing over possession of the unit by the stipulated date or even till date, the complainants are entitled to refund of the amount deposited, alongwith interest and compensation by way of filing the instant complaint.

42.           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.47,74,021.73  was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by Opposite Parties No.1, 3 & 4, for their own benefit. Opposite Parties No.1, 3 & 4 were charging heavy rate of interest @15% per annum, with quarterly rests, as per Clause 6.3 of the Agreement, for the period of delay in making payment of installments by the complainants.  It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), 2014 (2014) 6 SCC 335). In view of above, the complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest @13% p.a. (simple) (less than the rate of interest charged by Opposite Parties No.1, 3 & 4).

43.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them. Clearly possession of the unit, in question, has not been offered to the complainants till date on account of which, they (complainants) suffered mental agony and physical harassment.    The compensation in the sum of Rs.5 Lacs claimed by the complainants is certainly on the higher side. Compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.2 lacs (Rupees Two Lacs only), if granted, would be adequate to serve the ends of justice.

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

45.          For the reasons, recorded above, all the complaints bearing Nos.292, 313, 378 and 379 all of 2017 are partly accepted with costs.

Complaints No.292, 378 and 379.

46.         The Opposite Parties (in CC No.292 of 2017) and Opposite Party No.1 (in CC Nos.378 & 379 of 2017), are held liable and directed as under:-

1. To hand over physical possession of  the unit(s), allotted in favour of the complainant(s), complete in all respects, including modular kitchen with cupboards above the slab also and provision for Split AC (fittings) in all bedrooms, drawing & dining room, to the complainant(s), within a period of 30 days, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against the complainant(s) and submission of required documents.

 

2. To execute and get registered the sale deed(s), in respect of the unit(s), in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc. by the complainant(s).
3. To pay compensation, by way of interest @12% p.a., on the deposited amount(s), to the complainant(s), from 18.07.2014, 19.07.2014 & 18.07.2014  to 03.10.2017, 04.10.2017 & 04.10.2017 respectively, within 45 days, from the date of receipt of a certified copy of this order(s), failing which, the said amount(s) shall carry penal interest @15% p.a. instead of 12% p.a., from the date of filing the complaint till realization.

      (In these complaints viz. CC/292/2017, CC/378/2017 & CC/379/2017, a sum of Rs.3,49,107.00, Rs.3,59,611.50 & Rs.3,49,107.00 respectively, credit for which has been given on account of delay compensation, shall be deducted from the compensation amount arrived at by way of interest @12% for delay period).

      Further for failure of Opposite Parties to deliver possession within 30 days from the date of making payment/ submission of documents by the complainant(s), for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount(s) for each month, till possession is delivered, shall be payable by 10^th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.

4. To pay compensation, in the sum of Rs.1,50,000/-, in each case, on account of mental agony and physical harassment, caused to the complainant(s), and Rs.35,000/-, in each case, as cost of litigation, to the complainant(s), within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint(s) till realization.

Complaint No.313 of 2017

47.         Opposite Parties No.1, 3 & 4 are, jointly and severally, held liable and directed as under:-

(i)    To refund the amount of  Rs.47,74,021.73 to   the   complainants, alongwith interest @13% p.a. (simple), from the respective dates of deposits, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)   To pay an amount of Rs.2,00,000/- (Rupees Two Lacs only), as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainants, within a period of 45 days from the date of receipt of a certified copy of the order.

(iii)  In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then Opposite Parties No.1, 3 & 4, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% p.a. (simple), from the date of filing the complaint, till realization and amount(s) mentioned in Clause (ii) above, with interest @13% p.a. (simple) from the date of filing the complaint till realization.

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

49.         Certified Copy of this order be placed in the file of connected complaints bearing Nos.313, 378 and 379 all of 2017.

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

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

Pronounced.

31.10.2017.

[DEV RAJ]

PRESIDING MEMBER

 

 

[PADMA PANDEY]

 MEMBER

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