Chandigarh

StateCommission

CC/250/2016

Monica Chhibber Sharma - Complainant(s)

Versus

PUMA Realtors Pvt Ltd. - Opp.Party(s)

Divya Godara & Subhash Chand, Adv.

27 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	250 of 2016
Date of Institution	:	01.06.2016
Date of Decision	:	27.10.2016

Monica Chhibber Sharma wife of Late Sh.Rakesh Sharma, resident of House No.2098, Jal Vayu Vihar, Sector 67, Mohali.

……Complainant

V e r s u s

PUMA Realtors Pvt. Ltd., having its Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi, through its Director.
PUMA Realtors Pvt. Ltd., having its Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh, through its Managing Director.

.... Opposite Parties No.1 and 2

HDFC Bank, SCO 153-154-155, Sector 8-C, Madhya Marg, Chandigarh.

…..Opposite Party no.3

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

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

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER

Argued by:Ms.Divya Godara, Advocate for the complainant.

Sh.Ramnik Gupta, Advocate for opposite parties no.1 to 2.

Ms.Rupali Shekhar Verma, Advocate for the opposite party no.3.

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

The facts, in brief, are that the complainant alongwith her husband Sh.Rakesh Sharma (now deceased), purchased a residential apartment on 02.11.2010, from opposite parties no.1 and 2, in their project named ‘IREO RISE’, Sector 99, Mohali, Punjab. Provisional Allotment Letter in respect of apartment no.GBE-01-002, 1^st Floor, measuring 1813 square feet, with car parking space in the said project, was issued in favour of the complainant on 02.11.2010, on payment of booking amount of Rs.4.50 lacs. Buyers Agreement Annexure C-2 was entered into between opposite parties no.1 and 2, complainant and her husband on 12.04.2011. Total price of the unit was fixed at Rs.54,35,180/- which includes external development charges etc. The complainant and her husband also purchased an additional parking space, which was reflected in Clause 12.1 of the above said Agreement. To raise loan, a Tripartite Agreement was executed between the complainant and the opposite parties. In terms of loan agreement, the complainant is paying equated monthly installments of Rs.48,718/- to opposite party no.3.

It is case of the complainant that in terms of Clause 13.3 of the Agreement, possession of the constructed unit was to be handed over within a period of 30 months, from the date of execution of the said Agreement, with further grace period of 180 days, to get necessary clearances, subject to force majeure circumstances. It is further provided in Clause 13.4 of the Agreement, that extended grace period can be granted against payment of penalty for delay. It is further grievance of the complainant that terms and conditions contained in the Buyer’s Agreement are one sided. Time was essence of the contract. Condition to pay penalty is nothing but a lip service and is on the lower side. Husband of the complainant died on 17.04.2016.
The complainant has filed this complaint by alleging that possession of the unit has not been delivered within the stipulated period i.e. 30 months from the date of execution of the Agreement plus 180 days grace period i.e. upto to 11.04.2014. It is case of the complainant that the allottees were entitled to get compensation amount towards delayed penalty. Clauses 13.3 and 13.4 of the Agreement read thus:-

‘“13.3 - Subject to Force Majeure, as defined herein, and further subject to the Proposed Allottee having complied with all its obligations under the terms and conditions of this Agreement, and the Proposed Allottee not being in default under any part of this Agreement including but not limited to the timely payment of the total Sale Consideration, Stamp Duty and other charges and also subject to the Proposed Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to hand over the possession of the said Apartment to the Proposed Allottee within a period of 30 months from the date of this Agreement or approval of the Building Plan and/or fulfillment of the preconditions imposed thereunder, whichever is later (“Commitment Period”). The Proposed Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 (One Hundred and Eighty) days (“Grace Period”), after the expiry of the said Commitment Period to allow for unforeseen delays in obtaining the Occupation Certificate etc., from the Competent Authority under the Punjab Rules, in respect of IREO-RISE.

13.4-Subject to Clause 13.3, if the Company fails to offer possession of the said Apartment to the Proposed Allottee by the end of the Grace Period, it shall be liable to pay to the Proposed Allottee compensation calculated at the rate of Rs.7.50/- (Rupees Seven and paise Fifty only) per sq. ft. of the Super Area (“Delay Compensation”) for every month of delay thereafter until the actual date fixed by the Company for handing over of possession of the said Apartment to the Proposed Allottee. The Proposed Allottee shall be entitled to payment/adjustment against such ‘Delay Compensation’ only at the time of ‘Notice of Possession’ or at the time of payment of the final installment, whichever is earlier”.

It is also the case of the complainant that by the time, this complaint was filed, she had already paid more than Rs.52 lacs, towards sale consideration and delivery of possession is not yet in sight. It is also stated that allottee no.2 (deceased husband of complainant) had raised issue regarding delay in handing over possession of the flat and also nonpayment of delayed penalty, however, without any result. It is also stated that on 08.01.2015, when allottee no.2 (when he was alive) visited the site; taking note of pace of construction activities, it was realized that handing over possession of the constructed unit would take a long time. It was also stated that payment plan was changed to construction linked plan, without obtaining any consent from the allottees. An email was sent on 19.07.2015 with a request that the allottees be intimated about date, on which possession of the unit will be handed over. The allottees also raised issue of non-providing of modular kitchen in the constructed unit, however, their request was declined vide email dated 21.07.2015. Vide the above email, it was also intimated by opposite parties no.1 and 2 to the allottees that possession of the unit is likely to be delivered by January 2016. Even by that time, possession was not offered. It was further stated that even by the time, this complaint was filed, basic amenities promised like electricity, water etc. were not available at the site.
By stating as above, prayer was made to issue directions to opposite parties no.1 and 2 to hand over possession of the flat with all amenities; pay compensation for delayed possession, by making payment of interest @15% p.a. on amount paid. It was also prayed that directions be issued to opposite parties no.1 and 2 to provide modular kitchen, complete in all respects. Besides as above, compensation for mental agony and physical harassment alongwith litigation expenses were also sought.
Upon notice, reply was filed by the opposite parties.
Opposite parties no.1 and 2, in their joint written version pleaded 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. It was averred that the consumer complaint was not maintainable, as the matter relates with regard to dispute of contractual nature and an agreement to sell/purchase of an apartment only, an immovable property. It was stated that no services were to be provided by opposite parties no.1 and 2 to the complainant. It was further stated that, in this view of the matter, consumer complaint was not maintainable and only a Civil Court could adjudicate the dispute, in question. Territorial jurisdiction of this Commission was also disputed. It was stated that, time was not the essence of contract.
On merits, sale of the unit, in question, in the name of the complainant and her husband namely Rakesh Sharma (since deceased), was admitted. It was stated that initially, an amount of Rs.4.50 lacs was paid only by the complainant and not by her husband, as alleged. Name of her husband was added as co-allottee, on making request by the complainant. Execution of Buyer’s Agreement dated 12.04.2011 was admitted. It was averred that provisional allotment letter was issued on 02.11.2010 and not on 18.01.2012. It was stated that possession period of the unit was to be counted from the date of approval of the building plans i.e. 18.01.2012. It was further stated that as per terms and conditions of the Agreement, the allottees have given a consent that in case of delay in delivery of possession of the unit beyond period of 30 months, opposite parties no.1 and 2 shall be liable to pay delayed compensation @Rs.7.50Ps., per square feet of the super area, per month. It was stated that delayed payment amount was to be adjusted at the time of issuance of notice of possession. It was denied that the complainant is entitled to get interest @15% p.a., on the deposited amount. It was further stated that qua objections regarding providing modular kitchen, the facility will be provided under the slab and not above the slab. It was further stated that construction work of the unit is in progress. It was averred that occupation certificate for the unit, in question, has been applied to the competent Authorities on 11.08.2016 and after receiving it, possession will be handed over in the near future. It was stated that husband of the complainant died on 17.04.2016, as such, the complaint filed by her, is bad for non-joinder of legal heirs as necessary parties to the complaint. Prayer has been made to dismiss the complaint.
In reply filed, opposite party no.3 stated that loan was sanctioned in favour of the complainant, for making payment towards the said unit, for which, she has been regular in repayment thereof. It was pleaded that, in case, this Commission comes to the conclusion that the complainant is entitled to refund of the amount deposited, opposite party no.3 shall have first charge/right, to seek apportionment of its dues. It was stated that complaint qua opposite party no.3, is liable to be dismissed, as neither deficiency in rendering service and adoption of unfair practice has been proved against it, nor any allegation with regard to the same has been leveled by the complainant.
To the reply filed, rejoinder was filed by the complainant, reiterating all the averments contained in the complaint and repudiating those contained in written version of opposite parties no.1 and 2.
The parties led evidence, in support of their case.
We have heard Counsel for the parties and have gone through the evidence and record of the case very carefully.
It is on record that the unit in question was purchased by the complainant and her husband in their joint names, in the manner, referred to above. Husband of the complainant died on 17.04.2016 and qua transfer of his share, the matter is pending before the competent Authority. It is also on record that as per Buyer’s Agreement dated 12.04.2011, price of the flat was fixed at Rs.54,35,180/-. Further, to make payments towards the flat, the complainant and her husband had raised loan, for which a tripartite Agreement was executed between the parties. As per Clause 13.3 of the Buyer’s Agreement, possession of the unit was agreed to be delivered within a period of 30 months from the date of execution of that Agreement or date of approval of building plans, whichever is later, with further grace period of 180 days, subject to force majeure circumstances. It is on record that building plans qua the project, in question, were approved on 18.01.2012. In a way, possession of the unit was to be delivered to the complainant within 30 months from 18.01.2012 i.e. upto 17.07.2014. Admittedly, it has not been done so, by opposite parties no.1 and 2. In the written version, it has specifically been stated by opposite parties no.1 and 2 that to get occupation certificate, application was moved on 11.08.2016, and on receipt of the said certificate, possession of the unit will be offered in near future. Even by the time when arguments were heard, possession of the unit has not been offered to the complainant. It is an admitted position that when this complaint was filed, the complainant had deposited about Rs.52 lacs, towards price of the said unit. In a way, there is a clear-cut deficiency in providing service, on the part of opposite parties no.1 and 2, in not delivering possession of the unit, within a reasonable time or even till date.
It is argued by Counsel for opposite parties no.1 and 2 that husband of complainant died on 17.04.2016, leaving behind the complainant, two minor children and his mother, as his legal heirs, they have not been arrayed as parties to the complaint and in their absence, no effective directions can be issued, as prayed for, in this complaint and that the complaint is bad for non-joinder of the said parties. It is stated that as per law, the complainants’ share in the flat comes to 50% area plus (+) ¼^th of the remaining 50% share of her husband. It is stated by Counsel for opposite parties no.1 and 2, that two children and mother of the deceased Sh.Rakesh Sharma, are residing with each other and as per law of succession, the complainant cannot defeat their rights. It was stated by Counsel for the complainant that the mother of deceased has also agreed to transfer her share, in the name of two children of the complainant, who are minors. Be that, as it may, we are not entering into this controversy. The complainant is not seeking refund of the amount deposited. She is only seeking possession of the flat, which will be to the benefit of other legal heirs also. The complainant and legal heirs aforesaid, will be entitled to use the unit, in question, as per their entitlement, indicated above. Opposite parties no.1 and 2 will not be under obligation to execute sale deed, in respect of the unit, in question, till the pending question of inheritance is finally decided in one way or the other. Directions can further be issued to release the amount payable towards delay in delivery of possession of the unit, to the complainant, out of which, she can utilize upto her share i.e. 50% plus ¼^th out of the remaining 50% amount and rest of the amount, she (complainant) shall deposit in FDR and will be released to the minor children and mother of the deceased, as per final settlement of question of inheritance, as per law. In this view of the matter, objection raised by opposite parties no.1 and 2, that the complaint is bad for non-joinder of parties to the complaint, stands rejected.
As far as the dispute with regard to modular kitchen is concerned, this issue stood decided by this Commission in a similar case titled as Sh. Karan Pal Kandhari Vs. M/s Puma Realtors Private Ltd. and another, Consumer Complaint No. 236 of 2016, decided on 15.09.2016. In that case, the opposite parties were held deficient on this count, while holding as under:-

“The next question, which falls for consideration, is, as to whether Opposite Party No.1 by not providing complete modular kitchen was deficient in rendering service. As per Annexure I, Opposite Party No.1 was to make provision for modular kitchen. The provision and specifications, so mentioned in Annexure-I appended to the Agreement, at Page 115 of the reply, qua the aforesaid facility, is extracted hereunder:-

KITCHEN	MODULAR KITCHEN	Fitted modular Kitchen, SS Sink, CP fittings, provision for RO system, built-in hob/chimney.
	COUNTERTOP	Granite

Admittedly, the provision in accordance with the specifications in the Apartment Buyer’s Agreement was not made. It was argued on behalf of Opposite Party No.1 that it was nowhere agreed that modular kitchen comprising of both upper and lower cabinets/cupboards was to be provided. It was further argued that it was nowhere mentioned that portion above the working slab is a must for a modular kitchen. Opposite Party No.1 cannot draw its own conclusion that modular kitchen would be complete, even if the cupboards 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 that modular kitchen with cup-boards below and above the slab is to be provided. Therefore, Opposite Party No.1 is clearly deficient in not providing this facility in the Apartment. Not only this, Opposite Party No.1 sought acceptance of complainant to provide this facility at additional cost, which amounted to unfair trade practice. Opposite Party No.1 is, therefore, liable to provide modular kitchen with cup-boards upper the slab also”.

In the present case also, opposite parties no.1 and 2, were to provide a similar modular kitchen with same specifications/fittings, as was to be provided in the aforesaid case. As such, non-provision of the modular kitchen, as promised, is a grave deficiency on the part of opposite parties no.1 and 2. Opposite parties no.1 and 2 are therefore liable to provide modular kitchen with cup-boards upper the slab also.
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 her. 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, perusal of almost all the receipts placed on record, reveal that the same were issued by opposite parties no.1 and 2 from their Chandigarh Office, as the same bore address of the Company as “SCO 6-7-8, Sector 9-D, Madhya Marg, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by opposite parties no.1 and 2, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

No doubt, in the written version, an objection was also taken by opposite parties no.1 and 2 that as per Clause 36 of the Agreement, the Courts at Mohali and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the 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.

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 the complainant, to file the complaint. The submission of Counsel for opposite parties no.1 and 2, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

The next question, that falls for consideration, is, as to whether, there is a contract to sell a flat/apartment only, to the complainant and no services were to be provided as alleged, by opposite parties no.1 and 2 to her (complainant), as such, she would not fall within the definition of consumer. It may be stated here that it is not the case of opposite parties no.1 and 2 that they sold the unit, in question, in an open auction, on “as is where is basis”. The builder/opposite parties no.1 and 2 are bound to provide necessary facilities such as roads, drainage, drinking water, sewerage, street lighting etc. etc., for full enjoyment of the same by the allottees. In Haryana State Agricultural Marketing Board vs. Bishamber Dayal Goyal and Ors., Civil Appeal No.3122 of 2006, decided on 26.03.2014, the Hon’ble Supreme Court, while placing reliance on Municipal Corporation, Chandigarh & Ors. vs. Shantikunj Investment (P) Ltd. & Ors., (2006) 4 SCC 109, held that though it was not a condition precedent but there is an obligation on the part of the Administration to provide necessary facilities such as roads, drainage, drinking water, sewerage, street lighting etc. etc., for full enjoyment of the same by allottees. In view of above facts, the plea taken by opposite parties no.1 and 2, in this regard, stands rejected.
The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

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.”

It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of 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) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.
In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.
We will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case, some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.
We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act, a complaint is supposed to be decided within three months, from the date of service to the opposite party(s). In cases involving ticklish issues (like the present one, maximum not more than six months to seven months’ time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, 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 can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.
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. In the present case, the complainant has spent her entire life earnings to purchase the unit, in the said project, launched by opposite parties no.1 and 2, in the manner explained above. She is now running behind opposite parties no.1 and 2, to get delivery of possession of the unit. 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.
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.”

In view of the above, the plea taken by opposite parties no.1 and 2, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.

Another objection raised by Counsel for opposite parties no.1 and 2, was that the issues raised in the present complaint being of contractual nature, as such only the Civil Court has power to adjudicate the same, and this Commission did not have the jurisdiction to adjudicate the present complaint. It was also argued that the complainant is seeking directions from this Commission to re-write the agreed terms and conditions of the Agreement. As stated above, the complainant hired the services of opposite parties no.1 and 2, for purchasing the unit, in question, in the manner, referred to above. Opposite parties no.1 and 2, were to deliver possession of the unit, in question, in a time bound manner, referred to above, with complete basic amenities. By not completing the development and construction within the stipulated period, opposite parties no.1 and 2, violated the terms and conditions of the Agreement and were deficient in rendering service. Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”.

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 a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by her, as she falls within the definition of consumer, as stated above. In this view of the matter, the objection raised by opposite parties no.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.
Since, it has already been held that opposite parties no.1 and 2, were bound to deliver possession of the unit, within a period of 30 months from the date of execution of Agreement or from the date of approval of building plan, with grace period of 180 days, subject to force majeure circumstances, followed by extended delayed period of 12 months, on payment of delayed compensation, as such, time was certainly the essence of contract. In view of above, there is no substance in the arguments raised by Counsel for opposite parties no.1 and 2, that time was not the essence of contract

At the same time, it is also made clear that opposite parties no.1 and 2, also cannot evade their liability, merely by saying that since the word proposed/tentative was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, 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 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”.

In view of above, the plea taken by Counsel for opposite parties no.1 and 2, at the time of arguments, in this regard also stands rejected.