Chandigarh

StateCommission

CC/206/2016

Sahil Jain - Complainant(s)

Versus

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

Arun Kumar & Varun Bhardwaj, Adv.

23 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	206 of 2016
Date of Institution	:	12.05.2016
Date of Decision	:	23.08.2016

Sahil Jain, Aged 24 years s/o Sh. Sanjiv Jain, R/o House No.267, Adarsh Nagar, Jalandhar, Punjab. At present residing in House No.295-296, Greater Kailash, Jalandhar City.
Sanjiv Jain S/o Nirmal Kumar Jain, R/o House No.267, Adarsh Nagar, Jalandhar, Punjab.

……Complainants

V e r s u s

1. Puma Realtors Pvt. Ltd., A Company incorporated under the Companies Act, 1956 (An IREO Group Company), having its Registered Office at No.5, Dhanraj Chambers, 1^stFloor, Satbari, New Delhi-110074 and Corporate Office at SCO No.6-8, 1^st and 2^nd Floors, Sector 9-D, Chandigarh-160009 (India), through its Managing Director.

2. The Director, Puma Realtors Pvt. Ltd., A Company incorporated under the Companies Act, 1956 (An IREO Group Company), having its Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074 and Corporate Office at SCO No.6-8, 1^st and 2^nd Floors, Sector 9D, Chandigarh-160009 (India).

....Opposite Parties

Argued by:

Sh.Arun Kumar and Sh. Varun Bhardwaj, Advocates for the complainants.

Sh.Ramnik Gupta, Advocate for the opposite parties.

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Complaint case No.	:	208 of 2016
Date of Institution	:	13.05.2016
Date of Decision	:	23.08.2016

Samir Singh R/o H. No.2-3, AKS Colony, Patiala Road Ward No.10, Near Gurudwara - Zirakpur, Punjab – 140603.
Amarjit Singh R/o H. No.2-3, AKS Colony, Patiala Road Ward No.10, Near Gurudwara - Zirakpur, Punjab – 140603.

……Complainants

V e r s u s

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floors, Sector 9-D, Chandigarh-160009.

2. Ms. Sunaina Minhas, Authorised Signatory,SCO No.6-8, 1^st and 2^nd Floors, Sector 9-D, Chandigarh-160009.

....Opposite Parties

Argued by: Sh. Rajat Chopra, Advocates for the complainants.

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

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Complaint case No.	:	222 of 2016
Date of Institution	:	20.05.2016
Date of Decision	:	23.08.2016

Ramal Jain, Aged 69 years wife of Sh. Padam Kumar Jain resident of House No.95, New Lal Bagh Colony, Patiala.
Veena Jain, Aged 67 years wife of Sh. Ramesh Kumar Jain, resident of House No.95, New Lal Bagh Colony, Patiala.

……Complainants

V e r s u s

....Opposite Parties

Argued by: Sh.Arun Kumar and Sh. Varun Bhardwaj, Advocates for the complainants.

Sh.Ramnik Gupta, Advocate for the opposite parties.

Complaintsunder Section 17of the Consumer Protection Act, 1986.

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

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER.

PERDEV RAJ, MEMBER

By this order, we propose to dispose of, three consumer complaints, bearing no.206 of 2016 titled as Sahil Jain and Anr. Vs. Puma Realtors Pvt. Ltd. and another, 208 of 2016 titled Samir Singh & Anr. Vs. Puma Realtors Pvt. Ltd. and another and 222 of 2016 titled as Ramal Jain & Anr. Vs. Puma Realtors Pvt. Ltd. and another. The issues involved in all the cases aforesaid, except minor variations, here and there, of law and facts are the same. Arguments were heard in common, in the above cases.

2. Under above circumstances, to dictate order, facts are being culled from consumer complaint, bearing no.206 of 2016 titled as Sahil Jain & Anr. Vs. Puma Realtors Pvt. Ltd. and another. The complainants applied to the opposite parties, for purchase of a residential plot, in their project, namely IREO Hamlet, Sector 98, Mohali, Punjab, for their personal use and use of other family members. Alongwith the application form, an amount of Rs.6,50,000/-, was deposited by the complainants, as booking amount. Vide provisional allotment letter dated 29.04.2011 Exhibit C-4, the complainants were allotted residential plot bearing no.312, measuring 250.59 square yards, in the said project, @Rs.23,000/- per square yard. Plot Buyer’s Agreement (in short the Agreement) Annexure C-7 was executed between the parties, on 02.08.2011. Basic price of the plot was fixed at Rs.57,63,570/-. Apart from that, the complainants were also required to pay Rs.1275.10 per square yard, towards External Development Charges (EDC) and Rs.350/- per square yard, towards Interest Free Maintenance Security (IFMS). Thus, in this manner, in all, the complainants were required to pay Rs.67,65,326.45, towards entire sale consideration of the said plot. Vide letter dated 26.09.2011, the Opposite Parties changed the payment plan from time linked payment plan to development linked payment plan. It was stated that the complainants, in all, had paid an amount of Rs.27,53,536/- towards part price of the plot, in question, till 18.02.2014.

3. It was further stated that as per Sub Clauses 11.1, 11.2 & 11.3 of Clause No.11 of the Agreement, after development, physical possession of the plot was to be delivered to the complainants within 42 months, from the date of execution of above Agreement.After making the aforesaid payment, the complainants visited the site in the last week of August, 2015 and found that there was no development as promised by the Opposite Parties. Thereafter, the Opposite Parties at their own changed the allotted plot No.312 measuring 250.59 sq. yards to plot No.205 of 268.77 sq. yards without the knowledge and consent of the complainants. The complainants repeatedly requested the Opposite Parties either to hand over possession of the plot or in the alternative, refund the amount alongwith up-to-date interest @24% per annum. It was stated that there is no water, sewerage and electricity connections at the site and necessary permissions/ approvals with regard to the same had not been obtained by the Opposite Parties from the competent authorities.

4. It was further stated that the aforesaid acts of the opposite parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the opposite parties, to refund the amount of Rs.27,53,536/-, alongwith interest @24% p.a., from the respective dates of deposits till realization; pay compensation, to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.

5. 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.33 in the Plot Buyer’s Agreement dated 02.08.2011; that present complaint related to the enforcement of agreement to sell/purchase of a residential plot i.e. an immoveable property and hence was not covered under the Act; that the complainants did not hire any services of the Opposite Parties, as the parties did not enter into any contract for hiring the services and the contract was only to sell a piece of land to the complainants; that the complainants did not book the plot for their personal use but for investment/commercial purpose and that the allegations in the complaint being of contractual nature, were only triable by the Civil Court. It was further pleaded that jurisdiction issues be decided as preliminary issues and only thereafter, decision be taken on merits. Apart from above objections, a specific objection with regard to the territorial jurisdiction of the Commission on account of existence of Clause 35 in the Agreement has been raised stating that the Courts at Mohali and the Punjab & Haryana High Court at Chandigarh alone had the jurisdiction.

6. On merits, it is admitted that the complainants had purchased the plot, in question, from the opposite parties. It was stated that possession of the plot was to be delivered within 30 months, from the date of execution of the Agreement, plus 12 months more, against payment of delayed penalty amount, i.e. after 42 months, subject to completion of all the obligations by the complainants, contained in the terms and conditions of the same (Agreement) and not otherwise. It was further stated that the complainants had not made timely payments of sale consideration towards the plot, and rather, after making part payment, they had stopped making payment of the remaining installments. It was further stated that development work at the site, commenced on 01.05.2013, and, thereafter, demand was raised vide letter dated 30.04.2013, but the complainants did not make the payment thereof, for a long time. Several reminders, in the matter, were also sent to the complainants, but to no avail, as a result whereof, final opportunity was given to them vide letter dated 05.11.2013, but even then, needful was not done. The complainants made the payment on 26.02.2014 vide cheque dated 18.02.2014. It was stated that the Opposite Parties have already offered possession of the plot, in question, to the complainants vide notice of possession dated 23.11.2015 (Annexure OP-3). It was further stated that development work was complete; all the basic amenities had been provided at the site and also necessary permissions/sanctions had been obtained by the opposite parties, as a result whereof, they had even offered possession of units in the said project, to various allottees in the year 2015, who had complied with all the terms and conditions of the Agreement. It was further stated, that neither there was any deficiency, in rendering service, on the part of the opposite parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

7. The parties led evidence, in support of their cases.

8. Despite Opportunities afforded, the complainants did not file any rejoinder.

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

10. It is evident, on record, that vide provisional allotment letter dated 29.04.2011 (Annexure C-4), complainant No.1 was allotted a Plot bearing no.312, in the residential project “IREO Hamlet” admeasuring 250.59 sq. yard, Sector 98, SAS Nagar, Mohali, the basic sale price whereof was Rs.23,000/- per sq. yard besides External Development Charges (EDC) @Rs.1,275.10 per sq. yardand IFMS charges @Rs.350/- per sq. yard. Admittedly, Plot Buyer’s Agreement was executed between the complainants and the Opposite Parties on 02.08.2011 (Annexure C-7) at Chandigarh. The payment against the aforesaid plot was to be regulated as per payment plan, Annexure I(Exhibit C4-A at Page 30 of the file). Against the total price of the plot including External Development Charges, IFMS Charges, the complainants made payment in the sum of Rs.27,53,536/-. As admitted by the Opposite Parties, the development work started at the site only on 01.05.2013, almost two year after the execution of Plot Buyer’s Agreement dated 02.08.2011.It is also evident that the complainants concealed the fact of raising of demands by the Opposite Parties after February 2014 as also the fact that possession was offered by the Opposite Parties vide letter dated 23.11.2015 (Annexure OP-3).It is also evident on record that the complainants violated the provisions of Clause 19.1 of the Agreement as they did not adhere to the agreed payment plan and made the payment either with delay or defaulted as per the following table, mentioned at Page 29 of the written statement:-

Description of Installment	Payable amount of Installment (Rs.)	Date of Demand note/due date	Details of Reminders & Final Notice	Details of Payment/ Payment received Date	No. of days of delay.
Installment due start of site development.	9,43,834.16	30.04.2013/ 27.05.2013	Reminders Dt. 31.05.2013, 21.06.2013 Final Notice dt. 12.07.2013, Last & Final opportunity letter dt. 05.11.2013	Cheque No.201465, dated 18.02.2014/ 26.02.2014	275 days
Installment due within 3 months of commencement of development work at site.	12,11,193.40	30.10.2014/ 26.11.2014	Reminders dt. 01.12.2014, 08.01.2015	Not paid till date.	533 days as on the date of filing of present complaint.
Notice of possession & demand for last Installment & getting conveyance deed registered.	43,43,762.45	23.11.2015/ 24.12.2015	Notice of possession duly received on 27.11.2015	Not paid till date.	Not paid till date.
			Total no. of days of delay		808 days.

11. The first 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 jurisdiction to entertain the consumer complaint or not. It may be stated here that 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 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. Not only this, recently, 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 held as under:-

“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 andNational 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, and also in the face of ratio of judgments, referred to above, the argument raised by Counsel for the Opposite Parties, stands rejected.

12. The next question that falls for consideration, is, as to whether, the plot, in question, was purchased by the complainants, for their personal use, or they were speculators, as alleged by the opposite parties. No doubt, to defeat claim of the complainants, an objection was raised by the opposite parties, to the effect that the complainants, being investors, had purchased the plot, in question, for earning profits, as and when there was escalation in the prices of real estate, as such, they would not fall within the definition of consumer, as defined under Section 2(1)(d) of 1986 Act. It may be stated here that there is nothing, on the record to show, that the complainants are the property dealers and are indulged in sale and purchase of property, on regular basis. On the other hand, it has been clearly averred by the complainants, in para no.1 of their complaint that the plot, in question, was purchased by them, for their residential purpose. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, 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 Commission 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. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the flat, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316. The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in its written reply, therefore, being devoid of merit, is rejected.

13. The next question, that falls for consideration, is, as to whether, there is a contract to sell a plot only and no service was to be provided as alleged, by the Opposite Parties, to them (complainants) and, as such, they would not fall within the definition of ‘consumer’. It may be stated here that the stand taken by the Opposite Parties, needs rejection, in view of Haryana State Agricultural Marketing Board vs. Bishamber Dayal Goyal and Ors., Civil Appeal No.3122 of 2006, decided on 26.03.2014 (AIR 2014 S.C. 1766), wherein 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. Thus, since, it was bounden duty of the Opposite Parties to provide basic facilities and infrastructure to make the flat habitable, as such, it cannot be said that only an apartment was to be delivered to the complainants, without any amenities/facilities. Under similar circumstance, in Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), the National Commission, held as under:-

“In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the appellant-company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/ amenities, lay-out approvals etc. was a ‘service’ within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute. Having regard to the nature of the transaction between the appellant-company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted ‘service’ within the meaning of the Act. It was not a case where the appellant-company was selling the given property with all 7 Page 8 advantages and/or disadvantages on “as is where is” basis, as was the position in U.T. Chandigarh Administration and Anr. v. Amarjeet Singh and Ors. (2009) 4 SCC 660. It is a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents”.

In view of above facts, the plea taken by the Opposite Parties, in this regard, stands rejected.

14. Another objection raised by the Opposite Parties was that since the complainants sought enforcement of the Agreement, only a Civil Court has the jurisdiction, and as such, consumer complaint was not maintainable. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the plot, 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 plot, in question, within a period of thirty months, from the date of execution of the same (Agreement). Section 2 (1) (o) of 1986 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 1986 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.’s case (supra), 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 1986 Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors.’s case (supra). Counsel for the Opposite Parties, in this regard, referred to Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711. The Hon’ble Supreme Court in Narne Construction P. Ltd. etc. etc. Vs. Union of India and ors. Etc.’s case (supra) and Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors.’s case (supra), had clearly held that the nature of transaction is covered by the expression ‘service’. In Bangalore Development Authority Vs. Syndicate Bank’s case (supra), it was the specific case of the Opposite Parties that the scheme was on ‘no profit no loss basis’, there was escalation in the price of houses by ten times and the delay had occurred on account of contractor’s fault. By no stretch of imagination, the allotment in the present case, can be said to be on ‘no profit no loss basis’. As such, Bangalore Development Authority Vs. Syndicate Bank’s case (supra), being distinguishable on facts, is of no help to the Opposite Parties. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of 1986 Act, can be availed of by them, as they fall within the definition of a 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.

15. The next objection raised by the Opposite Parties is that existence of Clause 35 in the Buyers Agreement, bars the territorial jurisdiction of this Commission, to entertain and try the complaint. It may be stated here that according to Section 17 of the Act, a consumer complaint could 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, that demand notice dated 29.04.2011 (Exhibit C-2), receipt dated 1.6.2011 (Exhibit C-3), provisional allotment letter dated 29.4.2011 (Annexure C-4), Annexure – A, details of plot & payment plan (Exhibit C4-A), demand note dated 4.7.2011 (Exhibit C-5), receipt dated 29.7.2011 (Exhibit C-6) and letter dated 26.9.2011 (Exhibit C-8) were issued from the Chandigarh address of the Opposite Parties i.e.. SCO Nos.6-8, First and Second Floor, Sector 9-D, Madhya Marg, Chandigarh. Thus, since a part of cause of action, arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. A similar question arose, before the National Commission, in Smt. Shanti Vs. M/s. Ansal Housing & Construction Ltd., First Appeal No.142 of 2001 decided by the National Commission on 11.04.2002, wherein the National Commission held as under:-

“This appeal is directed against the order dated 9.4.2001 of the Delhi Consumer Disputes Redressal Commission non suiting the appellant on a preliminary issue holding that Delhi State Consumer Dispute Redressal Commission will have no jurisdiction to entertain the complaint.

What led the State Commission to pass this order was clause 24 of the agreement for allotment of residential flat to the appellant. It is stated that ‘any dispute arising out of this agreement shall be subject to jurisdiction of Lucknow Courts only”. State Commission also relied on the decision of the Supreme Court in the case of A.B.C. Laminart Pvt. Ltd. &Anr. Vs. A.P. Agencies, Salem - AIR 1989 SC 1239 to hold that only the courts in Lucknow would have jurisdiction.

We do not think State Commission examined the whole issue in a pragmatic manner. Complainant is a consumer and raised a consumer dispute under the Consumer protection Act, 1986. To help and assist a consumer and to achieve the objects of the Act, Section 11 of the Act was amended. This Section relates to the jurisdiction of the District Forum. Now a complaint could be filed against the opposite party not only at the place where he actually or voluntarily reside or personally works for gain but also where he carries on business or has branch office. The words “carries on business or has a branch office” were added by the amending Act of 1993. Jurisdiction of a District Forum is exclusively covered by Section 11 of the Act. For this we do not have to refer any provisions of the Code of Civil Procedure. Any provision of the agreement which oust the jurisdiction of a District Forum even from a place where the opposite party has a branch office cannot be held to be valid or binding. Moreover, the clause on which the complainant was non-suited refers to the jurisdiction of Lucknow Courts. District Forum is not a court as understood in the Code of Civil Procedure. That clause in the agreement will have no meaning as far as jurisdiction of the District Forum where the opposite party has even branch office is concerned.

National Commission has already taken a view on this aspect of the matter. Accordingly the impugned order of the State Commission is set aside and the matter is remanded to the State Commission to decide the complaint in accordance with law. Party shall appear before the State Commission on 8.7.2002 for further directions. This appeal is disposed of as above.”

It may be stated here that, for determining the territorial jurisdiction, to entertain and decide the complaint, the Consumer Foras are bound by the provisions of Section 11 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, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. Further, 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) CPJ31 (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 of 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 of 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 Section 11 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case. At the same time, it is also held in the face of case Ethiopian Airlines Vs Ganesh Narain Saboo’s (supra),decided by the Supreme Court of India, the judgment titled as M/s Taneja Developers and Infrastructure Limited Vs. Gurpreet Singh and another, First Appeal No.33 of 2014, decided on 25.02.2016, by the National Commission, reliance whereupon has been placed by Counsel for the opposite parties, to support his contention, that this Commission has no territorial jurisdiction, shall not hold the field. In these circumstances, such a Clause contained in the Agreement, therefore, could not exclude the jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainants, to file the complaint. The objection taken by the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

16. The next question, which falls for consideration, is, as to whether possession of the plot, in question, has been offered or not? Since the Plot Buyer’s Agreement was executed on 02.08.2011, 30 months period including 6 months grace period expired on 02.02.2014. Even 12 months extended period, in terms of Clause 11.3 of the Agreement expired on 02.08.2014. The complainants have averred that when they were not offered possession of the allotted plot, in question, with the stipulated period, they requested the Opposite Parties to refund their deposited amount alongwith interest. No cogent evidence to this effect has been placed on record. The Opposite Parties have placed, on record, notice of possession dated 23.11.2015 (Annexure OP-3), vide which, they offered possession of plot No.205, to the complainants and sought payment of instalment(s) in the sum of Rs.43,43,762.45. The factum of offer of possession vide letter dated 23.11.2015 (Annexure OP-3) and non-payment of dues has been concealed by the complainants in their complaint. The Opposite Parties in Para 20 of the written statement have stated that possession letter was delivered to the complainants on 27.11.2015. Offer of possession has not been disputed by way of rejoinder, which was not filed or during arguments. It may be stated here that the Opposite Parties, changed/relocated the plot allotted to the complainants i.e. Plot No.312 admeasuring 250.50 sq. yard to Plot No.205 admeasuring 268.68 sq. yards vide letter dated 30.10.2014 (Annexure OP-23).The complainants did not place on record any cogent evidence that change of plot was not acceptable to them. Their objection regarding relocation/change of plot, in the complaint is, thus, not tenable being afterthought.

17. The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount deposited with the opposite parties and to what extent. It is the specific case of the Opposite Parties that the development suffered due to non-payment of the due installment(s) by the complainants. Admittedly, as per Account statement (Exhibit C-9), against the total sale consideration of Rs.67,65,326.45, the complainants have paid an amount of Rs.27,53,536/- to the Opposite Parties uptil 26.02.2014. The complainants did not pay anything thereafter. Despite adequate opportunities provided by the Opposite Parties, the default on the part of the complainants persisted and they did not make payment of the due installments. Even the payment of installment of Rs.9,44,000/- was made by the complainants after delay of 275 days on 26.02.2014. Therefore, the complainants breached the terms and conditions of the Agreement, as they stopped making further payments. As such, they (complainants) rescinded the contract/Agreement. Nonetheless, the Opposite Parties also did not cancel the allotment and instead of cancelling the allotment, they continued to utilize the money of the complainants. Thus, once the complainants had rescinded the contract, their case with regard to refund of the deposited amount was to be dealt, in accordance with Clause 19.3 of Agreement, which says that in case of termination of the contract, on account of default in making payment towards the said plot, the opposite parties were entitled to forfeit the earnest money to the extent of 15% of the sale consideration, out of the deposited amount, and thereafter, were liable to refund the amount paid by the allottees, without any interest. However, in the present case, not even a single penny has been refunded to the complainants, by the opposite parties.

18. No doubt, as per Clause 19.3 of Agreement, the opposite parties have made themselves, entitled to forfeit earnest money to the extent of 15% of the sale consideration, out of the deposited amount, in case of cancellation of the unit, in question, yet, in our considered opinion, an amount exceeding 10% of the total price of the unit/property, cannot be forfeited by the opposite parties; it being unreasonable, unless they show that they had suffered loss to that extent of the amount to be forfeited by them. In DLF Ltd. Vs. Bhagwanti Narula, Revision Petition No.3860 of 2014 decided by Hon’ble National Commission on 06.01.2015, it was held that in the absence of evidence of actual loss, forfeiture of any amount exceeding 10% of the sale price cannot be said to be a reasonable amount. The aforesaid observation of Hon’ble National Commission was recorded taking note of decision of Hon’ble Supreme Court of India in Maula Bux Vs. Union of India, 1969 (2) SCC 544 and Shree Hanuman Cotton Mills &Ors. Vs. Tata Air Craft Ltd., 1969 (3) SCC 522and Satish Batra Vs. Sudhir Rawal, (2013) 1 SCC 345..

In DLF Universal Limited Vs. Nirmala Devi Gupta, Revision Petition No.3861 of 2014 decided on 26.08.2015, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in Paras 10 and 11 of its order, held that the Revision Petitioner was not entitled to charge interest as non-refundable amount on the subsequent installments in the wake of cancellation of plot. Paras 10 and 11 of the order read as under:-

“10. We have now to consider whether the forfeiture amount mentioned in the letter of cancellation under the head “earnest money” and “non-refundable advance” was justified or not. It has been stated in the said letter that a sum of Rs.15,57,781.25ps. was being forfeited as earnest money. In the plot-buyers’ agreement, however, this amount has been shown as Rs.14,85,747/-. It is to be seen, however, whether the OP DLF was within its rights to treat 15% of the total price as earnest money of the plot. In a case recently decided by this Bench in “DLF Limited vs. BhagwantiNarula,” RP No. 3860 of 2014, decided on 06.01.2015, we have taken the view that an amount exceeding 10% of the total price of the property cannot be forfeited by the seller as earnest money being unreasonable, unless the OP can show that it had suffered loss to the extent the amount was forfeited by it. Applying the same principle in the present case as well, it is held that the OP DLF was competent to forfeit only 10% of the total amount of the plot in question as earnest money. Since the total value of

the plot including Preferential Location Charges (PLC), is Rs.99,04,986.10ps. as already indicated, 10% of the earnest money comes out to be Rs.9,90,500/-

11. In so far as interest on delayed payments, stated to be non-refundable amount in the agreement is concerned, the OP deducted a sum of Rs.3,65,479.25ps in the cancellation letter. It is observed in this regard that the complainant made payments of a sum of Rs.12 lakh at the time of initial booking and then made two further payments in the last week of June 2011. Since no further payments were made, as per the terms and conditions of the allotment as contained in Para 65 of the plot-buyers’ agreement, the OP was well within its rights to initiate the process of cancellation of the plot after the first default in making payment of an instalment. In its own wisdom, if it decided not to do so immediately, it is not entitled to charge interest as non-refundable amount on the subsequent instalments in the wake of cancellation of plot. The letter of cancellation dated 23.05.2012 makes it clear that the plot-buyers’ agreement if executed, stood cancelled and the allottee shall not have any lien or right on the said property. It is held, therefore, that the OP cannot deduct a sum of Rs.3,65,479.25ps as non-refundable amount from the money deposited by the complainant.”

Further, recently the Hon’ble National Commission in case titled Shri Harjinder S. Kang Vs. M/s Emaar MGF Land Ltd., Consumer Complaint No.482 of 2014 decided on 04.07.2016, in Paras 13 and 14, held as under :-

“13. The case of the opposite party is that as per Clause 2(f) of the Buyers’ Agreement, extracted hereinabove, 15% of the total sale price constitutes the Earnest Money which they were entitled to forfeit. However, it has been held by this Commission in DLF Ltd., Vs. BhagwantiNarula, Revision Petition No.3860 of 2014, decided on 06.1.2015, that an amount exceeding 10% of the total price of the property cannot be forfeited as Earnest Money unless the opposite party can show that it has suffered loss to the extent of the amount actually forfeited by it. Applying the principle laid down in the above referred decision of this Commission, the opposite party could have forfeited only a sum of Rs.12,77,475/- from the amount paid to it by the complainant. The balance amount of Rs.71,97,275/- (84,74,750/- - 12,77,475/-) was required to be refunded to the complainant, which the opposite party has failed to do.

14. In the event of the failure of the allottee to make the timely payment of the sale consideration, the agreement could be terminated after a delay of more than thirty days from the due date. In the present case, the default on the part of the complainant occurred for the first time on 26.4.2013 since the instalment payable on that date was not paid in full. Therefore, the agreement could have been terminated on 26.5.2013. The opposite party however, failed to do so and continued to utilize the entire amount, which the complainant had paid to it from time to time. The opposite party therefore, must compensate the complainant by paying compensation by way of interest on the balance amount of Rs.71,97,275/- with effect from 26.5.2013.”

The aforesaid judgments clearly lay down that not more than 10% of the earnest money can be forfeited. It is therefore held that the opposite parties could forfeit an amount to the extent of 10% of the sale consideration i.e. Rs.6,67,126/-(10% of sale consideration of Rs.66,71,256.91) out of the deposited amount of Rs.27,53,536/-. Thus, in our considered opinion, forfeiture of a sum of Rs.6,67,126/-is adequate enough to compensate the opposite parties, on account of loss, if any, including brokerage charges.

19. In view of above, out of the total deposited amount of Rs.27,53,536/-., the opposite parties could forfeit a sum of Rs.6,67,126/- only and the balance amount was refundable to the complainants. As such, the complainants were entitled to the refund of an amount of Rs.20,86,410.00 i.e. [Rs.27,53,536.00 minus(-) Rs.6,67,126.00]. Once the Agreement stood rescinded by the complainants, the opposite parties, after forfeiting 10% of sale consideration, ought to have refunded balance amount to them (complainants),but they failed to do so and on the other hand, have been utilizing the same, for the last about more than1½ years, for their own benefit. 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) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335).By not refunding the aforesaid amount of Rs.20,86,410/-, the opposite parties indulged into unfair trade practice and the same also certainly amounted to deficiency, in rendering service, on their part. The complainants are, thus, entitled to refund of an amount of Rs.20,86,410/-alongwith interest @12% per annum from 08.01.2015 i.e. the date when the complainants defaulted in making payment of instalment in the sum of Rs.12,11,193.40Ps demand for which was raised by the Opposite Parties on 30.10.2014 and did not pay despite reminders, last being 08.01.2015.

20. In connected consumer complaint bearing Nos.208/2016, Opposite Party No.1 cancelled the allotment of the plot, in question, vide letter dated 05.01.2015 (Annexure C-5) on account of failure of the complainants to pay the due amount despite numerous reminders. While cancelling the allotment, out of Rs.27,13,595.88 Ps paid by the complainants, the Opposite Parties showed the refundable amount to be Rs.15,44,425.66Ps, after deducting Rs.8,99,283.22Ps as earnest money, Rs.80,170/- as interest and Rs.1,89,717/- as brokerage paid. As already stated above, the Opposite Parties could only deduct 10% of the total sale consideration of the plot, in question, from the amount paid by the complainants. In this case, the total sale consideration of the plot, in question, was Rs.59,95,221.44 i.e. [Rs.56,80,310.00 (BSP) + Rs.3,14,911.44 (EDC)]. Thus, the Opposite Parties could deduct only Rs.5,99,522/-, being 10% of Rs.59,95,221.44, out of Rs.27,13,595/- paid by the complainants. The complainants are thus entitled to refund of Rs.21,14,073/- alongwith interest@12% per annum from the date of cancellation i.e. 05.01.2015.

21. Similarly in connected consumer complaint bearing Nos.222/2016, the complainants paid an amount of Rs.27,53,371/- with the Opposite Parties against the plot, in question. There was delay of 52 days and 73 days in remitting two installments and installments in the sun of Rs.10,55,531.61Ps and Rs.37,82,511.81Ps, demand(s) for which was raised on 30.10.2014 and 23.11.2015 have still not been paid. The details given in a table by the Opposite Parties, at Page 30 and 31 of their written statement, are extracted hereunder:-

Description of Installment	Payable amount of Installment (Rs.)	Date of Demand note/due date	Details of Reminders & Final Notice	Details of Payment/ Payment received Date	No. of days of delay.
Installment due on allotment	2,14,536/-	29.04.2011/ 29.05.2011	Reminders Dt.2.06.2011	Cheque No.299094, & no.079215 both dated 21.06.2011	52 days
Installment due within 3 months of commencement of development work at site.	9,44,414.16	30.04.2013/ 27.05.2013	Reminders dt. 31.05.2013 & 21.06.2013.	Cheque No.307653 & no.229879 both dated 12.07.2013.	73 days
Installment due on within 3 months from commencement of development work at site	10,55,531.61	30.10.2014/ 26.11.2014	Reminders dt. 01.12.2014, 08.01.2015	Not paid till date.	565 days as on the date of filing of present complaint
Notice of possession & demand for last installment & getting conveyance deed registered	37,82,511.81	23.11.2015/ 24.12.2015	Notice of possession duly received on 27.11.2015	Not paid till date.	Not paid till date.
			Total no. of days of delay		690 days + Last installment

Non payment of due amount(s) by the complainants amounted to rescinding the contract. As already stated above, the Opposite Parties could only deduct 10% of the total sale consideration of the plot, in question, from the amount paid by the complainants. In this case, the total sale consideration of the plot, in question, was Rs.61,83,097/- i.e. [Rs.57,63,570.00 (BSP) + Rs.3,19,527.30 (EDC)]. Thus, the Opposite Parties could deduct only Rs.6,08,831/-, being 10% of Rs.60,83,097/-, out of Rs.27,53,371/- paid by the complainants. The complainants are thus entitled to refund of Rs.21,44,540/- alongwith interest@12% per annum from 08.01.2015, the date of final notice for making payment by the complainants.

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

21. For the reasons recorded above, all the complaints bearings Nos.206 of 2016, 208 of 2016 and 222 of 2016 are partly accepted, with costs. The opposite parties, jointly and severally, are directed as under:

Consumer complaint, bearing no.206 of 2016 titled as Sahil Jain and another Vs. Puma Realtors Pvt. Ltd. and another:-

To refund the amount of Rs.20,86,410/- to the complainants alongwith interest @12% p.a., from 08.01.2015.
To pay cost of litigation, to the tune of Rs.50,000/-to the complainants.
The payment of awarded amounts mentioned at sr.nos.(i) and (ii), shall be made by the opposite parties, to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, they (opposite parties) shall be liable to pay the amount mentioned at sr.no.(i), alongwith penal interest @15% p.a. instead of @12% p.a., from 08.01.2015 and interest @12% p.a., on the amount mentioned at sr.no. (ii), from the date of filing of this complaint, till realization.

Consumer complaint, bearing no.208 of 2016 titled as Samir Singh & Anr. Vs. Puma Realtors Pvt. Ltd. and another:-

To refund the amount of Rs.21,14,073/- to the complainants alongwith interest @12% p.a., from 05.01.2015.
To pay cost of litigation, to the tune of Rs.50,000/-to the complainants.
The payment of awarded amounts mentioned at sr.nos.(i) and (ii), shall be made by the opposite parties, to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, they (opposite parties) shall be liable to pay the amount mentioned at sr.no.(i), alongwith penal interest @15% p.a. instead of @12% p.a., from 05.01.2015and interest @12% p.a., on the amount mentioned at sr.no. (ii), from the date of filing of this complaint, till realization.

Consumer complaint, bearing no.222 of 2016 titled as Ramal Jain & Anr. Vs. Puma Realtors Pvt. Ltd. and another:-

To refund the amount of Rs.21,44,540/- to the complainants alongwith interest @12% p.a., from 08.01.2015.
To pay cost of litigation, to the tune of Rs.50,000/-to the complainants.
The payment of awarded amounts mentioned at sr.nos.(i) and (ii), shall be made by the opposite parties, to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, they (opposite parties) shall be liable to pay the amount mentioned at sr.no.(i), alongwith penal interest @15% p.a. instead of @12% p.a., from 08.01.2015 and interest @12% p.a., on the amount mentioned at sr. no. (ii), from the date of filing of this complaint, till realization.

22. However, it is made clear, that in case, the complainant(s), in the cases aforesaid, have availed loan facility from any banking/financial institution(s), it shall have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).

23. Certified copy of this order, be placed on the file of consumer complaints bearing nos.208 of 2016 and 222 of 2016.

24. Certified copies of this order be sent to the parties, free of charge.

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

Pronounced.

23.08.2016

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

(DEV RAJ)

MEMBER

(PADMA PANDEY)

MEMBER

Chandigarh

StateCommission

CC/206/2016

Sahil Jain - Complainant(s)

Versus

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

Arun Kumar & Varun Bhardwaj, Adv.

23 Aug 2016

ORDER

V e r s u s

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