Chandigarh

StateCommission

CC/711/2017

Goldy Chadha - Complainant(s)

Versus

Puma Realtors Pvt. Limited - Opp.Party(s)

Vivek Suri, Adv.

12 Jul 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	711 of 2017
Date of Institution	:	28.09.2017
Date of Decision	:	12.07.2018

 

Goldy Chadha aged about 41 S/o Sh.Gurcharan Singh Chadha permanent resident of 54 North Idgah Colony, Police Line, Agra at present resident of House No.98, Street 3 Block 2 Salwa Kuwait through his Special Power of Attorney Gurpreet Singh aged about 40 years S/o Sh.Kulwant Singh R/o 11 Madan Mohan Malviya Marg, Lucknow, Uttar Pradesh.

 

……Complainant

V e r s u s

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 Directors.

….. Opposite Party

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

                        Sh.Rohit Tanwar, AGM (Legal) of  the opposite     party.

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Complaint case No.	:	22 of 2018
Date of Institution	:	12.01.2018
Date of Decision	:	12.07.2018

 

1. Maninder Singh son of Sh.Bhagwan Singh Khalsa, R/o # B1/152, Farmer Apptt., Rohini, Sector 13, New Delhi
2. Ms.Sukhbeer Kaur wife of Sh.Maninder Singh, R/o # B1/152, Farmer Apptt., Rohini, Sector 13, New Delhi

 

……Complainants

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 Floors, Sector 9-D, Chandigarh-160009 (India), 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 Parties

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

                        Sh.Rohit Tanwar, AGM (Legal) of  the opposite     parties.

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Complaint case No.	:	833 of 2017
Date of Institution	:	12.12.2017
Date of Decision	:	12.07.2018

 

Satbir Singh aged about 42 years S/o Sh.Paramjit Singh permanent R/o House No.283-C, Rajguru Nagar, Ludhiana, Punjab, now residing at Flat No.822, G.B.M. Apartments, Gracia Floors, Kharar Kurali Road, Kharar, District Mohali, Punjab. 

……Complainant

V e r s u s

1. M/s Puma Realtors Private Limited, 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, First and Second Floor, Sector 9-D, Chandigarh-160009, through its Managing Director.
2. Anupam Nagalia, Director M/s 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.

….. Opposite Parties

Argued by:        Sh.Gourav Goel, Advocate for the complainant.

                        Sh.Rohit Tanwar, AGM (Legal) of  the opposite     parties.

=====================================================

Complaint case No.	:	843 of 2017
Date of Institution	:	19.12.2017
Date of Decision	:	12.07.2018

 

1. Brijinder Singh son of Sh.Bhagwan Singh Khalsa, R/o # B1/152, Farmer Apptt., Rohini, Sector 13, New Delhi
2. Ms.Sukhbeer Kaur wife of Sh.Brijinder Singh, R/o # B1/152, Farmer Apptt., Rohini, Sector 13, New Delhi

 

……Complainants

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 Floors, Sector 9-D, Chandigarh-160009 (India), 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 Parties

Argued by:        Sh.Gaurav Bhardwaj, Advocate proxy for Sh.Paras       Money Goyal, Advocate for the complainants.

                        Sh.Rohit Tanwar, AGM (Legal) of  opposite party   no.1

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Complaint case No.	:	783 of 2017
Date of Institution	:	07.11.2017
Date of Decision	:	12.07.2018

 

1. Raman Kumar Kalia, S/o Sh.Sukhdev Raj Kalia, Corporate Planning, KNPC Head Office, P.O. Box-70, Ahmadi, Safat-13001, Kuwait.
2. Rekha Kalia, w/o Raman Kumar Kalia, Corporate Planning, KNPC Head Office, P.O. Box-70, Ahmadi, Safat-13001, Kuwait.

 ……Complainants

V e r s u s

1. Puma Realtors Private Limited, (An IREO Group Company), Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh-160009 (India), through its Authorized Signatory/Directors Sh.Anupam Nagalia and Sh.Amrick Singh Gambhir.

2^nd Address:- Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074.

2. Sh.Anupam Nagalia, Director, Puma Realtors Private Limited, SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh.
3. Sh.Amrick Singh Gambhir, Director, Puma Realtors Private Limited, SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh.

….. Opposite Parties

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

                        Sh.Rohit Tanwar, AGM (Legal) of  the opposite     parties.

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

 

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

PER DEV RAJ, MEMBER

                By this order, we propose to dispose of the aforesaid five consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. Out of the said five complaints, possession has been offered to the complainants, on 30.06.2017 (as per complainants on 24.10.2017), only in complaint case bearing no.783 of 2017, and in the remaining four complaint cases, it has been candidly admitted by the opposite party(s), in their written replies, that possession in respect of the units therein, has not been offered. In all the five complaints, the complainants have sought delivery of actual physical possession of their respective units, alongwith compensation, by way of interest; compensation for mental agony and physical harassment; litigation expenses etc. At the time of arguments, on 04.07.2018, it was agreed between the contesting parties, that, in view of above, all these complaints can be disposed of, by passing a consolidated order. To dictate order, facts are being taken from consumer complaint bearing No.711 of 2017 titled as Goldy Chadha Vs. Puma Realtors Private Limited.

2.          This complaint is being contested by the complainant, through his Speical Power of Attorney Holder namely Sh.Gurpreet Singh, his brother-in-law. The present complaint has been filed by the complainant, seeking possession of the flat bearing No.001, 4^th Floor, Tower FRANGIPANI Court B, measuring 1511 square feet, purchased by him, in the project of the opposite party, launched by it, under the name and style ‘IREO Rise’, Sector 99, SAS Nagar, Mohali, Punjab. It was specifically stated that despite the fact that the opposite party had received substantial amount of Rs.54,26,246/- against total sale consideration of Rs.57,16,382.37 ps., paid for the period from December 2011 to January 2015 (as is evident from statement of account at page 165 of the file), it failed to offer and deliver possession of the unit, in question, within a period of 30 months, as committed by them, vide Clause 13.3 of the Agreement dated 16.01.2012 i.e. on or before 15.07.2014, for want of construction and basic amenities. It was further stated that for making payment towards price of the said unit, the complainant has availed housing loan to the tune of Rs.45 lacs, from HDFC Limited, which fact is evident from Tripartite Agreement dated 23.03.2012 Annexure C-13. It was further stated that, besides as above, in order to attract the customers, the opposite party, in the first instance, had advertised that construction of the said units, will be undertaken by a renowned Company called L & T, however, later on, it (opposite party) withdrew it and engaged some local builders, as a result whereof, construction at the site did not take place, as per schedule, and project could not be completed, in time. It was further stated that funds collected from the buyers of the said project, were diverted to another project, by the opposite party. It was further stated that there was a willful and intentional delay on the part of the opposite party, in not offering and delivering actual physical possession of the unit, in question, to the complainant. 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 of the super area of the unit, in the event of delay in handing over possession. It was further stated that the opposite party was trying to justify the delay in offering possession under the garb of Clause 13.4, which is most inadequate. It was further stated that, as per terms and conditions of the Agreement, in case of delay in making payment towards price of the said unit, the opposite party was charging heavy rate of interest @20% p.a., however, when it found that number of consumer complaints have been filed against it, it was reduced to 10% from 20%, vide letter dated 30.12.2015. It was further stated that the amenities/facilities, as promised in the Agreement, like multipurpose hall, swimming pool, gym, badminton & basketball courts, kids play area, jogging track etc. are not even in existence.
3.         It was further 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 party backed out from its commitment. It was further stated that the aforesaid act and conduct of the opposite party, amounted to deficiency in providing service and adoption of unfair trade practice. Hence these complaints.  
4.         Upon notice, reply was filed by the opposite party, wherein, it took 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 16.01.2012; that since the present complaint relates 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 did not hire any services of the opposite party, as the parties did not enter into any contract for hiring the services; that the allegations levelled in the complaint are of contractual nature and, as such, triable by Civil Court only; that this Commission has no territorial jurisdiction on account of existence of Clause 36 in the Agreement, according to which, only the Courts at Mohali and the Punjab & Haryana High Court at Chandigarh, has the exclusive jurisdiction, in the matters/disputes, arising out in respect of the unit, in question; that the complainant is not a consumer, as defined under Section 2 (1) (d) of the Act, as he is a speculator and has purchased the unit, in question, for resale, to gain profits i.e. for commercial purposes; and that the relief claimed is beyond Section 14(1)(d) of the 1986 Act.
5.         On merits, purchase of the unit, in question, by the complainant was not disputed. It was further stated that vide Clause No.13.3 of the Agreement, the complainant agreed that the starting period for 30 months of possession, shall be the date of 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 and that being so, the period for 30 months, referred to above, would not be counted from the date of execution of the said Agreement but would be from 18.01.2012. It was further stated that the opposite party has already applied for occupation certificate vide letters dated 11.08.2016 and 28.03.2017 and the moment it is received, possession of the unit will be offered to the complainant, alongwith amenities, as agreed.  
6.         It was further stated that, as agreed between the parties, vide Clause 13.4 of the agreement, in case of failure of the opposite party to deliver possession of the unit, within the commitment period, the complainant was entitled to the liquidated damages @Rs.7.50 per sq. ft. per month, of the super area of the unit, till its possession was actually offered. It was further stated that, as such, time was not the essence of contract. The complainant will get benefit of escalation of price of the unit, as possession thereof will be handed over to him, on the old rates, prevailing in the year 2011.
7.         It was further stated that the opposite party engaged L&T, one of the reputed construction Company, for construction of the project, in order to deliver best-in-class project, to its customers and the said Company had carried out majority of the construction and 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 hired, for undertaking the finishing works. It was further stated that entire construction work of the apartment, in question, has been done by L&T only.  It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite party, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
8.         The parties concerned, led evidence in support of their cases.
9.         We have heard the contesting parties, and have gone through the evidence, and record of all the cases, carefully. 
10.         First, we will deal with the objection, raised by the opposite party, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, in the Agreement, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

                In view of the above, objection raised by the opposite party in this regard, being devoid of merit is rejected.

11.         Another objection raised by the opposite party was that since the complainant did not buy goods and did not hire any services and is seeking enforcement of the Agreement in respect of immovable property i.e. a flat, which transaction is contractual, in nature, 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 party, for purchasing the unit, in question, in the manner, referred to above, on payment of sale consideration. Furthermore, the plea taken by the opposite party that there is a contract to sell a flat/apartment only, to the complainant and no services were to be provided, is falsified from its own document dated 30.12.2015 (at pages 167 and 168) of the file, wherein it has been very clearly mentioned that it (opposite party) will provide all basic amenities and facilities such as multipurpose hall, swimming pool, gym, badminton & basketball courts, kids play area etc., at the time of handing over possession of the unit, in question. According to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons beyond the control of the opposite party, it was to hand over possession of the constructed unit, in question, 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), which period had already expired, long back. Admittedly, the opposite party failed to comply with the commitments made. There is a breach of terms and conditions of the Agreement, on the part of the opposite party, which act amounts to deficiency in providing service and adoption of unfair trade practice. The reliefs sought in the complaint, are on account of deficiencies committed by the opposite party.  Since there is a specific clause in the agreement for delivering possession of the flat, within the specific time frame and penalty has been provided, if the Company fails to do so, the complainant was well within his right to file consumer complaint against the opposite party. 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 1986 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 1986 Act, can also be availed of by him, as he falls within the definition of consumer. In this view of the matter, the objection of the opposite party in this regard, being devoid of merit, must fail, and the same stands rejected.

                The plea taken by the opposite party is also bereft of merit, in view of latest judgment of the National Commission, titled as M/s. Karwa Developers & 3 Ors. Vs. Shree Vinayak Co-Operative Housing Society Ltd. & 3 Ors., First Appeal No. 980 of 2016,  decided on 3^rd  March, 2017, wherein, a similar plea of the builder was negated by it, while holding as under:-

“We also do not find any substance in the plea taken by the appellant that under clause 14(a) of the development agreement, the complainant was required to file a civil suit under the Specific Relief Act only, because they were asking for monetary relief.  The State Commission rightly stated that the relief sought in the complaint were on account of deficiencies committed by the OP Developers, vis-à-vis, the society.  Since there is a specific clause in the agreement for giving the possession of the flat within specific time frame and penalty has been provided if the developers failed to develop the same, the society was well within its rights to file consumer complaint against the OP builder.”

 

12.         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. Furthermore, perusal of almost all the documents (except few), including the payment receipts placed on record, reveal that the same were issued by the opposite party from its Chandigarh Office, as the same bore address of the Company as “SCO 6-7-8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh”. Not only as above, as per Clause 29 of the Agreement, address of the Company for communication and notices is also found mentioned as “SCO 6-8, First and Second Floors, Sector 9-D,  Chandigarh-160009”.  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 the opposite party, in its 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 the opposite party 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 him, to file the complaint. The submission of Counsel for the opposite party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

13.         Another objection was taken by the opposite party, to the effect that since the complainant has purchased the said unit, not for his residential purposes but for commercial purpose i.e. for earning profits, after selling the same, as such, he would not fall within the definition of consumer, as defined under the Act. It may be stated here that there is nothing, on record to show that the complainant is a property dealer and deals in sale and purchase of property, in India, on regular basis. The complainant in his complaint, supported by his affidavit, has specifically stated that the unit, in question was purchased by him, for his personal use. Even otherwise, a mere fact that the complainant is residing abroad/he is a NRI, cannot debar him to purchase property in India. No law debars NRIs, with roots in India, to purchase a residential property in India. Under similar circumstances, the Hon`ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as 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. 

                At the same time, 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. Separate houses may be purchased by a person for the individual use of his family members. A person owning a house in one city may also purchase a house in another city, 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. 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. Even otherwise, still the complainant is seeking possession of the unit, in question. The objection raised, being devoid of any substance, stands rejected.

14.         It is not in dispute that the complainant had paid an amount of Rs.54,26,246/- against total sale consideration of Rs.57,16,382.37 ps., as is evident from statement of account, at page 165 of the file. 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. Admittedly, possession of the unit has not been offered to the complainant, by the stipulated date (17.07.2014) or even till date. This fact has been candidly admitted by the opposite party, in its reply and also by its Counsel, during arguments. At the time of arguments, it was said by Counsel for the opposite party that possession of the unit will be delivered soon, after obtaining occupation certificate from the Competent Authorities, which is awaited. However, no exact date has still been given. There is, therefore, deficiency in providing service, on the part of the opposite party, in not offering possession of the unit, in question, by the stipulated date or even as on today. As regards deficiency in providing promised amenities viz. multipurpose hall, swimming pool, gym, badminton & basketball courts, kids play area, jogging track etc., Counsel for the opposite party has categorically stated that the same will also be provided shortly i.e. at the time of handing over possession of the unit.

                Action of the opposite party 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 Agreement. 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 party has specifically stated that L&T had completed majority of construction and development work and it was to avoid delay that Akalia Constructions (a Sub-contractor of L&T) was appointed for finishing works. The objection of the complainant is, therefore, devoid of merit, and needs no consideration.

15.         The next question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainant and whether the complainant is entitled to delivery of possession of the unit. As stated above, according to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons beyond the control of the opposite party, it was liable to deliver physical possession of the unit, 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). Admittedly, the building plans were approved on 18.01.2012 i.e. after execution of the Agreement on 16.01.2012. 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 party was entitled to further 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, occupation certificate has not been obtained by the opposite party, as there is nothing on record, in that regard. However, the opposite party without getting occupation certificate, applied for the issuance of partial completion Certificate in August 2016 (as stated in para no.10, at page 32 of reply of the opposite party) i.e. after expiry of 180 days grace period, which has still not been received, by it.  Therefore, in absence of any cogent evidence or justification to seek extension of 180 days by the opposite party, it was not entitled to grant of 180 days grace period. Further, advantage of 180 days grace period would have been admissible to the opposite party, had they applied for the occupation certificate, during the aforesaid period of 180 days. The opposite party was duty bound to hand over possession within 30 months from 18.01.2012, when building plans were approved i.e. latest by 17.07.2014. Clearly there is delay in delivering possession of the unit, to the complainant. 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, the opposite party was not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant is certainly entitled to physical possession of the unit, in question.

                At the same time, it is also held that since a specific time frame to deliver possession of the unit, in question, was given by the opposite party, by way of Clause 13.3 of the agreement, as such, time was unequivocally made essence of the contract. Plea taken by the opposite party that time was not the essence of contract, being devoid of merit, must fail and the same stands rejected.

16.         Now coming to the dispute with regard to modular kitchen, 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 party was 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, the opposite party was 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 the opposite party.  Opposite party is therefore liable to provide modular kitchen with cup-boards upper the slab also.

17.         As far as the provision of split AC in all the rooms are concerned, it may be stated here that the opposite party has admitted in its written reply that the same has been provided by them, in all the areas, as mentioned in the Agreement. However, if, at any stage, it is found that provision of the split AC has not been provided, by the opposite party, as promised, the complainant shall be at liberty to file execution application in that regard, as permissible under law. 
18.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, for delay in offering and delivering physical possession of the unit beyond the time stipulated in the Agreement, and, if yes, at what rate. 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 party 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.

                What relief can be granted to a consumer, in case of delay, in offering possession of the unit purchased, came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016, wherein dealing with similar issue, it was observed as under:-

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

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

Not only this, in another case, titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

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

9.      xxxxxxxxxxxxx

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

(1)     xxxxxxxxxxxxxx

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

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

                Not only this, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice. Thus, keeping in view the principle of law laid down by the Apex Court and also the Hon'ble National Commission, in the cases, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 17.07.2014, till actual delivery of possession of the unit, would meet the ends of justice.

19.         In so far as complaint bearing no.783 of 2017, is concerned, it may be stated here that it has been specifically contended by Counsel for the complainants that, actually, the offer letter dated 30.06.2017 (Annexure C-29) was received by the complainants, only on 24.10.2017, which fact was not disputed by Counsel for the opposite party, rather, it was admitted. It was further stated that, on receipt of the said letter, the complainants visited the site on 24.10.2017 itself, and found that the unit is incomplete. Wooden flooring was yet to be done. White washing was also not complete. Kitchen was also not made ready. Basic amenities were found missing. It may be stated here that, in the offer of possession letter dated 30.06.2017, the complainants were given 60 days’ time to make payment of the due amount(s), if any, and for completion/submission of documents and upon the complainants doing so, the opposite parties, were to take another 30 days for final touches/finishing works in the unit. The said paras of the offer of possession letter(s) read thus:-

“We would like to inform you that upon receipt of the amounts due and on completion of the documentary formalities mentioned above, it will take us about 30 days from final touches/finishing works in your apartment.

You are requested to kindly make the payment of all amounts due and payable, if any, and complete all the documentary formalities within 60 days from the date of this Notice of Possession. Billing for maintenance charges shall commence from the expiry of 60 days from the date of this Notice of Possession or actual possession by the Apartment Buyer, whichever is earlier. In case there is a delay in handing over of the apartment, the said period of 30 days would stand extended to the date when the apartment is ready for handing over, after completion of final touches/finishing works. Any delay in taking possession of the Apartment shall be at your own risk and cost in terms of the Apartment Buyers Agreement.”

There is nothing on record that after 24.10.2017, the complainants made efforts to ascertain the status of unit, to take possession. Thus, the delay in delivering possession, in this case, assuming that the complainants received the possession letter on 24.10.2017, would come up-to 24.01.2018 (24.10.2017 + 60 days + 30 days=90 days/three months). At the same time, when we look into the contents of the account statement (at page 130 of the file) in the aforesaid complaint, it is found that against the demanded amount of Rs.52,74,455.84ps., the complainants had paid an amount of Rs.49,75,481.42 ps. In this manner, still an amount of Rs.2,98,974.42ps. was due to be paid by the complainants, to the opposite parties, towards price of the respective unit therein.  However, after making adjustment of an amount of Rs.3,52,012.50 ps. i.e. delayed compensation @Rs.7.50 per square feet of super area of the unit, for the period of delay, it reveals that the opposite parties were required to refund the amount of Rs.40,963.07 ps. to the complainants. This amount came after adjustment/deduction of Rs.12,075/- towards meter and DTH charges.

                In this regard, it is submitted that since it has been held above that the complainants are entitled to compensation by way of interest on the deposited amount, for the period of delay in handing over possession of the unit(s), as such, the amount of compensation  of Rs.3,52,012.50 ps. already paid by the opposite parties, in the manner, referred to above, shall be adjusted in the compensation amount due to be paid by them (opposite parties), in view of findings given in para no.19 above, till 24.01.2018. At the same time, it is also held that, if the complainants themselves did not prefer to take possession of the unit in this case, they cannot be granted any benefit of delay in delivery of possession after 24.01.2018. Had the complainants wrote any letter/email followed by reminders, to the opposite parties, after 24.01.2018 stating therein that remaining work as mentioned in offer of possession letter dated 30.06.2017, is not done and had the said letters been not replied by the opposite parties, only in those circumstances, it would have been said that since despite making offer of the unit, and, thereafter, requests made, remaining work, referred to above, has not been completed by the opposite parties till the date of filing of this complaint or till the date of arguments, as such, the complainants are entitled to compensation by way of interest till actual physical possession of the unit, complete in all respects, is delivered to them. But in the present case, as stated above, the complainants have failed to prove on record, that the flat was not habitable as on 24.01.2018. Since, in this case also, as per Agreement executed therein, possession of the unit was to be delivered within maximum period of 30 months from the date of approval of the building plans i.e. from 18.01.2012 as such, in this case also, the complainants are held entitled to compensation by way of interest, from the committed date of delivery of possession i.e. from 17.07.2014, yet, till 24.01.2018 only and not beyond that, in view of reasons given above.  

20.          As far as the objection taken in consumer complaint bearing no.783 of 2017, with regard to impleading of opposite parties no.2 and 3, in their personal capacity, is concerned, we do not agree with it. It is not the case of the opposite parties that the above-named persons are not their Directors. As such, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the Company. A similar controversy arose for determination before the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017, wherein, it was held as under:-

“From the material on record, it is evident that the OP-2 is the Chairman of the Company whereas the OP-3 is the Chief Executive Officer-cum-M.D. of the said company.  Evidently, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the company.  By virtue of their office, they can directly influence any decision regarding relief to be granted to the complainant, as asked for in the consumer complaint.  It is held, therefore, that the State Commission has rightly dismissed the interim application, rejecting the plea of the appellants to delete the name of OP-2 & OP-3 from the array of parties.  The impugned order passed by the State Commission is, therefore, upheld and the appeal is ordered to be dismissed with no order as to costs.”

               

                In view of above, objection raised by Counsel for the opposite parties, in this regard, stands rejected.

21.         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 party, by the promised date i.e. by 17.07.2014. The complainant purchased the unit, with the hope to have a roof over his head but his hopes were dashed to the ground. Despite making huge amount towards price of the unit, in question, the  complainant is  still empty handed. The complainant is definitely undergoing a lot of mental agony and physical harassment, on account of the acts of omission and commission of the opposite party. Delay of more than three years in delivering possession of the unit, which is still a continuing one, is a clear act of deficiency on the part of the opposite party and loss to the complainant. However, the compensation in the sum of Rs.10 lacs claimed by the complainant is clearly on the higher side. The complainant, in our considered opinion, has been adequately compensated by granting interest @12% per annum on the deposited amount for the delay period in handing over possession of the unit, in question. In these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainant, if granted, to the tune of Rs.1,50,000/-, shall be reasonable, adequate and fair.
22.         No other point, was urged, by the contesting parties.
23.         For the reasons, recorded above, all the five complaints are partly accepted with costs, in the following manner:-

Consumer complaints bearing nos.711 of 2017, 22 of 2018, 833 of 2017 and 843 of 2017. The opposite party(ies) are directed as under:-

1. To hand over physical possession of  the respective 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,  within a period of two months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against the complainant(s), if any, and submission of required documents.
2. To execute and get registered the sale deeds, in respect of the respective units, 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.
3. To pay compensation @12% p.a., in each case, on the entire deposited amount, for the period from 18.07.2014 till 31.08.2018, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @15% p.a., from the date of default, till offer of possession of the unit, as ordered above, is made.
4. To pay compensation @12% p.a., in each case, on the entire deposited amount, w.e.f. 01.09.2018, onwards, till actual delivery of actual physical possession of the unit, by the 10^th of the following month, failing which, the same shall also carry penal interest @15% p.a., from the date of default, till offer of the unit, as ordered above, is made.

                However, it is made clear that, in case, if offer of possession is made, yet, the amounts of compensation, so accrued, as ordered in Clauses (iii) and (iv) above are not paid, the opposite party shall be liable to pay the same alongwith penal interest aforesaid, in the manner explained above, on entire amount deposited till the date when possession is actually delivered and, thereafter, interest @9% per annum shall be paid only on the amount accrued towards delay compensation for the period of delay in making that payment i.e. from the date when possession of the unit is delivered, till payment is actually made.

1. To pay compensation, in the sum of Rs.1.50 lacs , in each case, on account of mental agony and physical harassment, caused to the complainant, 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 this complaint till realization.

Consumer complaint bearing no.783 of 2017. The opposite parties, jointly and severally are directed as under:-

1. To hand over actual physical possession of the unit, allotted in favour of the complainants, 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, within a period of 30 days, from the date of receipt of a certified copy of this order, by the complainants.
2. To execute and get registered the sale deed, in respect of the unit, 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 complainants.
3. To pay compensation @12% p.a., on the entire deposited amount, for the period from 18.07.2014 till 24.01.2018, as held above, in the main order, within a period of 45 days, from the date of receipt of certified copy of this order. If the amount of compensation, by way of interest, less compensation already credited by way of credit memo aforesaid, is not paid within 45 days, from the date of receipt of certified copy of this order, the amount of compensation accrued from 18.07.2014 to 24.01.2018 shall start getting interest @9% p.a., after expiry of 45 days, till payment is made, besides the amount payable, which became due, as referred to above, in this Clause @12% p.a. for the period from 18.07.2014 till 24.01.2018.
4. To pay compensation, in the sum of Rs.1.50 lacs , on account of mental agony and physical harassment, caused to the complainants, and Rs.35,000/- as cost of litigation, to the complainants, 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 this complaint till realization.

24.         It is further made clear that the amount of compensation, for the period of delay, if any, other than consumer complaint bearing no.783 of 2017, has already been paid or credited by the Company/PUMA Realtors Private Limited, in the account of the complainant(s) in remaining four complaints, the same shall be deducted/adjusted accordingly, at the time of making payment of delayed compensation, by them (opposite parties) to the complainant(s).
25.         Certified Copy of this order be placed in the connected files, referred to above.
26.         Certified Copies of this order be sent to the parties, free of charge.
27.         The file be consigned to Record Room, after completion.

Pronounced.

12.07.2018

Sd/-

JUSTICE JASBIR SINGH (RETD.),

PRESIDENT

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

Rg.