Chandigarh

StateCommission

CC/170/2015

Abha Arora - Complainant(s)

Versus

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

Gagan Anand, Parveen Moudgil , Shivali Jain, Adv.

01 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	170 of 2015
Date of Institution	:	14.08.2015
Date of Decision	:	01.04.2016

 

Abha Arora wife of Sh.Rakesh Arora, House No.157, Sector 27-A, Chandigarh.

……Complainant

V e r s u s

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh.
2. Ms.Sunaina Minhas, Authorized Signatory, Puma Realtors Pvt. Ltd., SCONo, 6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh.

            ....Opposite Parties

Argued by:Sh.Parveen Moudgil, Advocate for the complainant.

                 Sh.Sanjeev Sharma, Senior Advocate with Sh.Ramnik                   Gupta, Advocate for opposite party no.1.                        

                Service of opposite party no.2 dispensed with.

 

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Complaint case No.	:	171 of 2015
Date of Institution	:	14.08.2015
Date of Decision	:	01.04.2016

 

1. Varun Narang son of Sh.Rajinder Pal Narang, House No.534, Sector 16, Panchkula.
2. Smt.Kamlesh Narang wife of Sh.Rajinder Pal Narang, House No.534, Sector 16, Panchkula.

……Complainants

V e r s u s

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh.
2. Mr. Aman Malhotra, Authorized Signatory, Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh-160009.

              ....Opposite Parties

Argued by:Sh.Parveen Moudgil, Advocate for the complainants.

                Sh.Ramnik Gupta, Advocate for the opposite parties

                       

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Complaint case No.	:	172 of 2015
Date of Institution	:	14.08.2015
Date of Decision	:	01.04.2016

 

1. Gurvinder Singh son of Sh.Kartar Singh, House No.505, Phase10, SAS Nagar, Mohali.
2. Ravinder Kaur wife of Mr.Gurvinder Singh, House No.505, Phase10, SAS Nagar, Mohali.

 

……Complainants

V e r s u s

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh-160009.
2. Ms.Sunaina Minhas, Authorized Signatory, Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh-160009.

              ....Opposite Parties

Argued by:Sh.Parveen Moudgil, Advocate for the complainants.

                Sh.Ramnik Gupta, Advocate for the opposite parties      

 

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Complaint case No.	:	173 of 2015
Date of Institution	:	14.08.2015
Date of Decision	:	01.04.2016

 

1. Paramjit Singh Saini son of Late Sh.Surjit Singh Saini, A-8/49, 1^st Floor, Sector 16, Rohini New Delhi-110085.
2. Ranjit Kaur wife of Mr.Paramjit Singh Saini, A-8/49, 1^st Floor, Sector 16, Rohini New Delhi-110085.

……Complainant

V e r s u s

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh-160009.
2. Mr. Ajay Kumar Kurichh, Authorized Signatory, Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh.

              ....Opposite Parties

Argued by:Sh.Parveen Moudgil, Advocate for the complainants.

                Sh.Ramnik Gupta, Advocate for the opposite parties

 

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Complaint case No.	:	176 of 2015
Date of Institution	:	19.08.2015
Date of Decision	:	01.04.2016

 

Gyanesh Kumar Bhatnagar son of Sh. I.K. Bhatnagar, resident of House No.1139, Sector 36C, Chandigarh.

……Complainant

V e r s u s

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh-160009.
2. Ms.Sunaina Minhas, Authorized Signatory, Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh-160009.

              ....Opposite Parties

Argued by:Sh.Parveen Moudgil, Advocate for the complainant.

                Sh.Ramnik Gupta, Advocate for opposite party no.1.

                Service of opposite party no.2 dispensed with vide order                         dated 18.09.2015.  

 

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Complaint case No.	:	177 of 2015
Date of Institution	:	19.08.2015
Date of Decision	:	01.04.2016

 

Gurdeep Singh son of Sh.Harjant Singh Dhillon, resident of G-106, Ivory Towers, Sector 70, Mohali.

……Complainant

V e r s u s

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh-160009.
2. Mr. Aman Malhotra, Authorized Signatory, Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh-160009.

              ....Opposite Parties

Argued by:Sh.Parveen Moudgil, Advocate for the complainant.

                Sh.Ramnik Gupta, Advocate for the opposite parties

       

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Complaint case No.	:	180 of 2015
Date of Institution	:	21.08.2015
Date of Decision	:	01.04.2016

 

1. Mr.Jaswinder Singh son of Sh.Jagroop Singh.
2. Mr.Navdeep Singh Sran son of Mr.Jaswinder Singh
3. Mrs.RaminderBrar wife of Mr.Navdeep Singh Sran

Correspondence Address:- House No.1546, Sector 51B, Chandigarh.

……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), Registered Office at No.5, Dhanraj Chambers, 1st Floor, Satbari, New Delhi-110074, through its Managing Director/Director/Authorized Signatory.
2. 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 Floors, Sector 9-D, Madhya Marg, Chandigarh 160009, through its Managing Director/Director/ Authorized Signatory.

              ....Opposite Parties

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

                Sh.Ramnik Gupta, Advocate for the opposite parties

 

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Complaint case No.	:	182 of 2015
Date of Institution	:	21.08.2015
Date of Decision	:	01.04.2016

 

1. Mr.Ashwani Kumar, son of Sh.Pawan Kumar, House No. 2258, First Floor, Sector 68, Mohali, Punjab.
2. Mr. Anil Kumar, son of Sh.Pawan Kumar, House No.2043, Sector 71, Mohali, Punjab.

……Complainants

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), Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074, through its Managing Director/ Director/Authorized Signatory.
2. 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 Floors, Sector 9-D, Madhya Marg, Chandigarh 160009, through its Managing Director/Director/Authorized Signatory.

              ....Opposite Parties

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

                Sh.Ramnik Gupta, Advocate for the opposite parties.

 

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Complaint case No.	:	209 of 2015
Date of Institution	:	08.09.2015
Date of Decision	:	01.04.2016

 

1. Mrs. Nisha Garg wife of Sh.Vikas Kumar, House no.220, Veer Colony, Bathinda, Punjab.
2. Mrs. Rekha Rani wife of Sh.Rajesh Kumar,  House No.96B, Dana Mandi, Ward no.26, Bathinda, Punjab.

……Complainants

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), Registered Office at No.5, Dhanraj Chambers, 1st Floor, Satbari, New Delhi-110074, through its Managing Director/ Director/Authorized Signatory.
2. M/s Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Corporate Office at SCONo.6 - 8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh 160009, through its Managing Director/ Director/Authorized Signatory.

              ....Opposite Parties

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

                Sh.Ramnik Gupta, Advocate for the opposite parties

 

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Complaint case No.	:	213 of 2015
Date of Institution	:	14.09.2015
Date of Decision	:	01.04.2016

 

Neenu Goel wife of Sh.Sanjay Goel, resident of House No.1133, 1^st Floor, Sector 37-B, Chandigarh.

……Complainant

V e r s u s

1. M/s Puma Realtors Pvt. Ltd., An IREO Group Company through its Managing Director/Chairman, Corporate Office at SCO No.6-8, 1^st and 2^nd Floor, Sector 9D,  Madhya Marg, Chandigarh-160009.
2. M/s Puma Realtors Pvt. Ltd., An IREO Group Company through its Managing Director/Chairman, Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074.

              ....Opposite Parties

Argued by:Sh.Neeraj Sobti, Advocate for the complainant.

                Sh.Ramnik Gupta, Advocate for the opposite parties.

                       

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Complaint case No.	:	214 of 2015
Date of Institution	:	15.09.2015
Date of Decision	:	01.04.2016

 

Ms. Mona Milkha Singh aged 50 years, d/o Sh.Milkha Singh, through her General Power of Attorney Mrs. Nirmal Milkha Singh, resident of House No.725, Sector 8-C, Chandigarh.

 

……Complainant

V e r s u s

1. Puma Realtors Pvt. Ltd., (An IREO Group Company) through its Managing Director, Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074.

Second Address:-

Puma Realtors Pvt. Ltd., (An IREO Group Company) through its Managing Director, Corporate Office at SCO No.6-8, 1^st and 2^nd Floor, Sector 9D,  Madhya Marg, Chandigarh-160009.

2. The Managing Director, Puma Realtors Pvt. Ltd., Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074.

              ....Opposite Parties

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

                Sh.Ramnik Gupta, Advocate for opposite party no.1.

               

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Complaint case No.	:	231 of 2015
Date of Institution	:	30.09.2015
Date of Decision	:	01.04.2016

 

Ram Kumar Singh son of Sh.Vasu Deo Singh, resident of House No.2322, Sector 66, Mohali, Punjab.

……Complainant

V e r s u s

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh.
2. Ms.Sunaina Minhas, Authorized Signatory, Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st and 2^nd Floor, Sector 9D, Chandigarh.

              ....Opposite Parties

Argued by:Sh.Parveen Moudgil, Advocate for the complainant.

                Sh.Ramnik Gupta, Advocate for opposite party no.1.

                Service of opposite party no.2 dispensed with vide order                         dated 30.10.2015.

       

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Complaint case No.	:	265 of 2015
Date of Institution	:	05.11.2015
Date of Decision	:	01.04.2016

 

Sandeep Gupta, son of Sh.Dharam Pal Gupta, resident of Flat No.21-C, City Centre, Patiala, Punjab.

……Complainant

V e r s u s

1. M/s Puma Realtors Pvt. Ltd., An IREO Group Company through its Managing Director/Chairman, Corporate Office at SCO No.6-8, 1^st and 2^nd Floor, Sector 9D,  Madhya Marg, Chandigarh-160009.
2. M/s Puma Realtors Pvt. Ltd., An IREO Group Company through its Managing Director/Chairman, Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074.

              ....Opposite Parties

Argued by:Sh.Neeraj Sobti, Advocate for the complainant.

                Sh.Ramnik Gupta, Advocate for 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 JUSTICE JASBIR SINGH (RETD.), PRESIDENT

            By this order, we propose to dispose of, following cases:-

	CC/170/2015	Abha Arora	Vs.	PUMA Realtors Pvt. Ltd.  &  anr.
	CC/171/2015	Varun Narang &  anr.	Vs	PUMA Realtors Pvt. Ltd. &  anr.
	CC/172/2015	Gurvinder Singh &  anr.	Vs	PUMA Realtors Pvt. Ltd. &  anr.
	CC/173/2015	Paramjit Singh Saini &  anr.	Vs	PUMA Realtors Pvt. Ltd. &  anr.
	CC/176/2015	Gyanesh Kumar Bhatnagar	Vs.	PUMA Realtors Pvt. Ltd. &  anr.
	CC/177/2015	Gurdeep Singh	Vs.	Puma Realtors Pvt. Ltd,  &  anr.
	CC/180/2015	Jaswinder Singh & ors.	Vs	M/s Puma Realtors Pvt. Ltd,  &  anr.
	CC/182/2015	Ashwani Kumar	Vs	M/s Puma Realtors Pvt. Ltd,  &  anr.
	CC/209/2015	Mrs.Nisha Garg &  anr.	Vs	M/s Puma Realtors Private Limited &  anr.
	CC/213/2015	Neenu Goel	Vs	M/s Puma Realtors Pvt. Ltd.  &  anr.
	CC/214/2015	Ms Mona Milkha Singh	Vs	Puma Realtors Pvt. Limited &  anr.
	CC/231/2015	Ram Kumar Singh	Vs	Puma Realtors Pvt. Ltd. &  anr.
	CC/265/2015	Sandeep Gupta	Vs	M/s Puma Realtors Pvt. Ltd. &  anr.

 

2.       Arguments were heard in common, in all these cases, alongwith some other complaints against real estate developer namely Emaar MGF Land Limited, Unitech Limited and Sushma Buildtech Limited.
3.       The  issues involved in all these cases, except minor variations, here and there, of law and facts are the same. The primary disputes are with regard to the applicability of Section 8 (amended) of the Arbitration and Conciliation Act, 1996 and also, as to whether, when possession of the plot was offered to the complainant, development  at  the site was complete or not and further, as to whether, the transaction, in question, was only purchase  of  a  piece  of land without their being any promise to provide further basic amenities or not. Other issues like, that the complainant was not a consumer, as she has invested the money only to earn profit, in future etc. were also raised in all these cases. The objection qua applicability of Section 8 (amended) of the Arbitration and Conciliation Act, 1996 was pressed as a preliminary issue, in  the  reply filed, however, when arguments were concluded on 15.03.2016 and complaint was reserved for orders, the following order was passed:-

“Counsel for the parties are in agreement that issue regarding applicability of Section 8 of Arbitration and Conciliation Act, 1996, be decided when passing order on merits in the complaint”

4.       Under  above  circumstances, to  dictate order, facts are being taken from consumer complaint bearing no.170 of 2015, titled  as Ahba  Arora Vs. Puma Realtors Pvt. Ltd. and another.  It  is case of the complainant that she hired services of the opposite parties by purchasing a plot bearing no.343, measuring 250.59 square yards, in IREO Hamlet, Sector 98, Mohali, Punjab. (Admittedly, the said project is a part of approved Mega Housing Project).              An application for the said purpose was moved by the complainant on 13.05.2011. Rs.6.50 lacs were paid by her,  as  booking  amount, against receipt Annexure C-1. Plot Buyer’s Agreement (in short the Agreement) Annexure C-2 was executed between the parties, on 19.08.2011. Basic price of the plot was fixed at Rs.64,96,750/- excluding External Development Charges (EDC), Preferential Location Charges (PLC) etc. For making payment, time linked payment plan was accepted by the complainant, she was required to make payment of 95% of the total sale consideration, within 18 months, from the date of allotment of plot. Balance amount of 5% of the sale consideration was to be paid on delivery of possession of the plot. It is further alleged that as per General Clause 11.1 of the Agreement, after development, physical possession of the plot was to be delivered to the complainant within 24 months with grace period of 6 months i.e. not later than 30 months, from the date of execution of above Agreement, plus 12 months more against payment of penal amount.  On demand(s) being raised by the opposite parties in respect of the plot, amount was deposited by the complainant, well in time, with minor delays here and there, for which penal interest/amount was paid.

            In a way, it is case of the complainant that possession of the plot was to be delivered on or before 18.02.2014. It could have been delayed further by 12 months, only on payment of penalty/delayed compensation @Rs.50/- per square yard, per month, for the period of delay.

5.       It is stated by the complainant that, when there was no development at the site, she through email(s) Annexure C-4 (colly.), asked the opposite parties, to state, as to within how much time, development will be completed at the site and possession of the plot will be handed over to her. Photographs showing status of construction at the spot, were also placed on record, as Annexure C-5 colly. When promise to hand over possession, within the stipulated date, was not fulfilled, the complainant was forced to send a legal notice dated 19.06.2015 Annexure C-6, seeking refund of amount paid by her.
6.       It is further stated that development at the spot was not complete. To say that it was bounden duty of the opposite parties to develop the site, by providing basic amenities like sewerage lines, water supply, electrical supply etc., reliance was placed upon a communication Annexure C-7 i.e. RTI Information, given by Greater Mohali Area Development Authority (GMADA), to one P.S. Saini, stating that promoters/realtors are to complete development work at the project, before handing over possession of the plots/flats and as per Notification issued on 02.09.2014, they are bound to get Completion Certificate of their project. Further reliance is placed upon similar communication Annexure C-8 dated 19.05.2015, to state that electricity supply is not available at the site. Further reliance was placed upon communication Annexure C-9 dated 03.07.2015 to show that promised roads were not available at the site. It was also alleged that as per document Annexure C-10, sewerage and storm water drainage lines were not available at the spot. It is further stated that without any request having been made by the complainant, her site/plot was changed fraudulently i.e. from plot no.343 to plot no.184. By writing emails mentioned above, such action was objected to by the complainant, however, till the date of filing of this complaint, no satisfactory answer was given by the opposite parties. It is further stated that the opposite parties failed to get completion certificate, from the Competent Authority, till the date of filing this complaint. To say so, reliance has been placed upon document Annexure C-11. By stating as above, it is mentioned that in a very arbitrary manner, without any development being there at the spot, offer to make paper possession, was made vide letter dated 21.05.2015, Annexure C-12. This appears to have been done by the opposite parties, to get out of their liability of making refund, as claimed by the complainant.  By stating as above, refund of the amount deposited was sought, besides claiming compensation for mental and physical harassment and litigation expenses.
7.       Upon notice, reply was filed by opposite party no.1, taking numerous preliminary objections, stating that in view of issuance of notice of possession dated 21.05.2015, this complaint has become infructuous and that in the face of existence of an arbitration clause in the Agreement to settle disputes between the parties, this Commission has no jurisdiction to entertain the same (complaint). To say so, reliance was placed on General Clause 33 of the Agreement. It is further stated that there was no promise to provide any service, as alleged. The contract was only to sell her a piece of land. It is also asserted that the plot, in question, was purchased for future gain, as such, the complainant would not fall within definition of a consumer. It is further averred that since the plot, in question, is situated in Mohali, as such, this Commission has no territorial jurisdiction to entertain this complaint. It was also averred that jurisdiction issues be decided as preliminary issues and only thereafter, decision be taken on merits.
8.       On merits, it is admitted that the complainant had purchased a plot from the opposite parties. It is 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, subject to completion of all the obligations by the complainant, contained in the terms and conditions of the same (Agreement) and not otherwise. As she had not made timely payments of the sale consideration of plot, she is not entitled to get benefit of above fixed period to hand over possession. Further, it is stated that as per terms and conditions of the Agreement, in case, there is delay in handing over possession of the plot, the complainant could claim penalty, as provided under Clause 11.2 of the same. Under the Agreement, power lies with the complainant to terminate the contract, but it was not exercised by her. It is specifically shown by making chart that there is delay of 1 day to 02 months, in making payment of instalments.
9.       There is no dispute that for the said delayed payment, penal interest/amount was charged by the opposite parties, from the complainant. Fact qua basic price of the plot is admitted. Charges qua EDC, PLC etc. were also admitted, as a matter of record. It is also admitted that initially payment plan was time linked, however, subsequent there to, it was converted into development linked payment plan. It is not denied that possession of the plot was to be delivered within 30 months, plus 12 months, on payment of delayed compensation, from the date of execution of the Agreement. It was stated in the written statement that in terms of development linked payment plan, payments were demanded on completion of development work, in a phased manner. It is so mentioned in sub-para (iv) of para 3 of the written statement. It is specifically stated that the development work, to lay down sewerage, electric, water and rain harvesting lines was complete and as the lines were laid underground, those were not visible at surface of the earth. It is further stated that installation of electrical transformer, electricity feeders, street lights etc. are available and visible at the site. Qua roads, only blacktopping remains to be done. Rest of the work was complete. It is also stated that the complainant had made payment(s) without raising any objection, as such, now she is not entitled to rack those issues in this complaint. Offer to handover physical possession of the plot was made after completion of development work at the site. It is specifically stated that opposite party no.1 is developing a “Mega Housing Project” over an area measuring 132 acres duly approved under the Punjab State Industrial Policy, for the year 2003 and is not a fly by night operator. Qua non-availability of completion certificate, it is stated that vide notification dated 14.08.2008 the project, in question, was exempted from applicability of the provisions of Punjab Apartment and Property Regulation Act, 1995. It is stated that the alleged letter dated 02.09.2014 is not applicable to the project, in question and there is no mandate to obtain Completion Certificate as alleged. It is further stated that at the maximum, if any, the complainant is entitled to get penalty for delayed possession or liquidate damages, for any loss suffered by her. Change of location of the plot sold was admitted, stating that as per the Agreement, opposite party no.1 was empowered to do so. It is also stated that the project “IREO Hamlet” is divided into two parts, by one internal road. The said road is to be jointly developed by opposite party no.1 and another developer, developing the project, in Sector 98, Mohali. The said developer has not undertaken development of its project, as such, construction of the said road could not be completed. It was prayed that the complaint having no substance, be dismissed.
10.       During proceedings of this complaint, it was claimed by the complainant that there was no development at the site, whereas the said claim was refuted by opposite party no.1. Thereafter on moving an application by opposite party no.1, under Order 26 Rule 9 C.P.C., vide order 15.10.2015, two Local Commissioners were appointed to visit the site, in question, and to make report regarding availability of facilities and development at the site. The site was inspected on 24.10.2015 and report of the even date alongwith photographs taken at the site, was placed on record. The effect of this report will be considered in later part of this order.
11.       To the said report, objections were filed by both the parties.
12.       Service of opposite party no.2 was dispensed with, by this Commission, vide order dated 18.09.2015.
13.       Complainant and opposite party no.1, led evidence in support of their case, alongwith which, number of documents were attached. 
14.       On completion of the proceedings, arguments of the parties were heard, in detail.
15.       Before dealing with the arguments raised by Counsel for the respective parties, it is necessary to notice the background, in which the Consumer Protection Act (in short 1986 Act) was enacted. Its' salient features also needs to be mentioned.

            The United Nations, in its General Assembly, with a view to protect interest of the consumers, particularly those in the developing countries, adopted the draft guidelines submitted by the Secretary General to the Economic and Social Council (UNESCO) in 1983, by passing Resolution No.39/248. Our Country is signatory to the said Resolution. The objectives of these guidelines are:

(a) To assist countries in achieving or maintaining adequate protection for their population as consumers.

(b) To facilitate production and distribution patterns responsive to the needs and desires of consumers.

(c) To encourage high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers.

(d) To assist countries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect consumers.

(e) To facilitate the development of independent consumer groups.

(f) To further international cooperation in the field of consumer protection.

(g) To encourage the development of market conditions which provide consumers with greater choice at lower prices.

16.       With a view to fulfill the objectives, as mentioned to above and taking note of vast expansion in trade and commerce, providing variety of consumer goods in the market, the Consumer Protection Bill was introduced to provide better protection of interest of the consumers. It talks of promoting the rights of consumers, such as:-

(a) the right to be protected against marketing of goods which are hazardous to life and property;

(b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;

(c) the right to be assured, wherever possible, access to an authority of goods at competitive prices.

(d) the right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums;

(e) the right to seek Redressal against unfair trade practices or unscrupulous exploitation of consumers, and

(f) right to consumer education.

17.       Thereafter, 1986 Act was enacted on 24.12.1986, and all provisions of the said Act, came into force, with a view to achieve the above said objectives.

            Noting objectives of this enactment, the Hon’ble Supreme Court of India, in Fair Air Engineers (P) Ltd. v. N.K. Modi (1996) 6 SCC 385, observed as under:-

“The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and matters connected therewith. In Section 3 of  the Act in clear and unambiguous terms it is stated that the provisions of the 1986 Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi- judicial forums are set up at the district, State and national level with wide range of powers vested in them. These quasi-judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non-compliance with their orders."

 

18.       Qua the consumers, 1986 Act is a special legislation. The poor consumers cannot fight the might of multinational companies/traders. The said companies/ traders have lot of resources at their command. As in the present cases, the consumers/complainants have spent their entire life earnings to purchase plot(s)/residential units, in a complex of the opposite parties, which is  apart of ‘Mega Housing Project”. To force the complainants' further, to incur huge expenses to get her rights, settled through regular litigation/arbitration is not desirable at all. The Hon'ble Supreme Court of India in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 has specifically observed as under:-

“The trend of the decisions of this Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the  power of the Consumer Forum to adjudicate upon the dispute could not be negated.”

19.       It was specifically observed that even in those cases, where two different redressal Agencies/Acts, have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. Taking note of a weak position, in which a consumer is set against multinational companies and other big producers, it  was  said by the Hon'ble Supreme Court of India in a case titled as United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),that, where there is any ambiguity in understanding the meaning of provision of law, or where two interpretations are possible, one beneficial to the consumer should be accepted. The same view was reiterated in LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC).

            We have to give response to the arguments raised by the parties, in the light of spirit of law, laid down by the Hon'ble Supreme Court of India, as referred to above.

20.       Counsel for the complainant has addressed his arguments, in terms of the facts stated in earlier part of this order. It is further stated that within the period of 30 months to provide possession of plot, development was not complete at the site, possession could have been delayed further by 12 months, only if there existed force majeure circumstances, delaying providing of infrastructure at the site and further that amended provisions of Section 8 of 1996 Act, are not applicable in the face of existence of Section 3 of 1986 Act. Many more arguments were addressed, which will be referred to, in the later part of this order.
21.       Sh. Sanjeev Sharma, Senior Advocate, on behalf of opposite party No.1/builder, has vehemently contended that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It was further argued that, may be taking note of un-amended provisions of Section 8 of 1996 Act vis-à-vis Section 3 of 1986 Act, it had earlier been said that the Consumer Foras have jurisdiction to entertain the complaint, as Section 3 provides additional remedy to the consumers and existence of arbitration clause in the agreement would not bar jurisdiction of the Consumer Foras, however with amendment in Section 8 of the 1996 Act, position has changed. In a way, he made an attempt to say that amendment in Section 8 of 1996 Act, leaves no power, with the Consumer Foras to entertain any consumer complaint, in cases, wherein Agreement for settlement of disputes is provided through arbitration. To buttress his arguments, he has referred to Clause 33 of the Agreement, which reads thus:-

“All or any disputes arising out of or touching upon or in relation to the terms of this Agreement or its termination including the interpretation and validity of the terms hereof and the respective rights and obligations of the Parties shall be settled amicably by mutual discussions failing which the same shall be settled through reference to a sole Arbitrator to be appointed by a resolution of the Board of Directors of the Company, whose decision shall be final and binding upon the Parties. The allottee hereby confirms that it shall have no objection to the appointment of such sole Arbitrator even if the person so appointed, is an employee or advocate of the Company or is otherwise connected to the Company and the Allottee hereby accepts and agrees that this alone shall not constitute a ground for challenge to the independence or impartiality of the said sole Arbitrator to conduct the arbitration. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996 or any statutory amendments/modifications thereto and shall be held at the Company's offices or at a location designated by the said sole Arbitrator in Chandigarh. The language of the arbitration proceedings and the Award shall be in English. Both the Parties will share the fees of the Arbitrator in equal proportion”.

22.       He further argued that the Agreement was only to sell a piece of land, without making any further promise to provide facilities like water, electricity, sewerage, roads etc. No service was to be provided by the opposite parties to the complainant. In the alternative, he asserted that, of its own, opposite party no.1 provided many facilities like construction of link roads, laying down sewerage, electricity, water and harvesting lines etc., underground, however, the same would not mean that there was any undertaking to provide those facilities. By making reference to the Local Commissioner's report dated 24.10.2015, he said that development was complete at the spot, when possession was offered to the complainant on 21.05.2015.
23.       Above arguments were controverted by Counsel for the complainant, in rebuttal.
24.       Before dealing with the legal issues, it is necessary to note down amended and unamended provisions of Section 8 of 1996 Act and other provisions, which were added in the 1996 Act (principal Act), by the Arbitration and Conciliation Amendment Act, 2015, which was signed by the Hon'ble President of India on 31.12.2015.

            Unamended provisions of Section 8 of 1996 Act, reads thus:-

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

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

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

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

25.       After amendment, Section 8 of 1996 Act, reads as under:-

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

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

26.       The provisions which needs interpretation/ explanation, as added in the principal Act, have been underlined, in the above extracted paragraph. Vide the 2015 Act, in principal Act, Fourth Schedule was added with it, scale of fee, to be charged by an Arbitrator has been prescribed. Besides as above, by making amendment in Section 11 of 1996 Act, it is provided that any application of the contesting parties to appoint an Arbitrator is to be decided by the High Court/its nominee expeditiously as possible and an effort be made to dispose of the same, within 60 days, from the date of service of notice upon the opposite party. Further, by making an amendment in the principal Act, Section 29 A has been added providing that an Arbitrator is supposed to make an award within 6 months from the date the Arbitral Tribunal enters upon the reference. There is a provision for extending the time period for 6 months more, with consent of the parties. Thereafter, the Court has been given power to extend it, in case of need. As per Section 34 of 1996 Act, the award so passed, can be challenged before the Court. As per amended provisions added in the principal Act, the Court is supposed to dispose of the said dispute within a period of one year, from the date, on which the notice is served upon the opposite party. As per law, the matter can further be challenged in the High Court and may be, thereafter, it will go to the Hon'ble Supreme Court of India.
27.       Now, we would like to deal with applicability of Section 8 (amended) of the principal Act, to the proceedings before this Commission. It is to be decided, as to whether, in the face of existence of an arbitration clause in the Agreement, it is open to this Commission, to entertain a consumer complaint, in terms of provisions of Section 3 of 1986 Act or not.

            Here, it is necessary to reproduce the provisions of Section 3 of 1986 Act, for consideration:-

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

28.       Such issue was also raised, when unamended provisions of Section 8 of 1996 Act, was in existence. Similar argument was raised that when settlement of disputes is provided through arbitration in the Agreement, the consumer complaint is not maintainable. In umpteen number of cases, it is held by the Hon'ble Supreme Court of India, National Commission and various State Commissions, that Section 3 of 1986 Act provides additional remedy and existence of arbitration clause, in the Agreement, to settle disputes between the parties, is not a bar to entertain a complaint filed by the consumer, alleging deficiency in providing service etc.

            A similar issue came up before this Commission in Sh.Dharam Pal Gupta Vs. M/s Emaar MGF Land Limited and another, Consumer Complaint No.147 of 2015, decided on 13.10.2015. After noting the ratio of judgments of the Hon'ble Supreme Court of India, in various cases, and also of the National Commission, it was observed as under:-

It was next vehemently argued by Counsel for Opposite Parties No.1 and 2 that the complaint filed under Section 17 of the Act, was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Buyer’s Agreement. To say so, reference was made to Clause 42 of the Buyer’s Agreement, which reads thus:-

“42. In the event of any dispute arising out of or touching upon or in relation to the terms of this Agreement or its termination, including the interpretation and validity thereof and the respective rights and obligations of the Parties shall be settled amicably by mutual discussion, failing which the same shall be settled through arbitration of an Arbitrator to be appointed(by?)the Company. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996, or any statutory amendments, modifications or re-enactment thereof for the time being in force and shall be held at New Delhi. The Courts at Mohali alone shall have the territorial jurisdictions in all matters arising out of/touching and/or concerning this Agreement”

It is stated that in case of dispute, an attempt will be made to settle the same, in an amicable manner, failing which, the same shall be referred to an Arbitrator in terms of Arbitration and Conciliation Act, 1996 (in short the 1996 Act). Heavy reliance has been placed on judgment of Calcutta High Court titled as Sudarshan Vyapar Pvt. Ltd. and another's case (supra). Further reliance was placed on a judgment rendered by the State Consumer Disputes Redressal Commission, Punjab, at Chandigarh, titled as Raj Kumar Singal Vs. M/s Puma Realtors Private Limited and another, Miscellaneous Application Nos.1226 and 1227 of 2014, in Consumer Complaint No.60 of 2014 and also upon a case titled as M/s S.B.P. and Co. Vs. M/s Patel Engineering Limited and another, AIR 2006 SC 450.

On the other hand, it is stated by Counsel for the complainant that in terms of Section 3 of the 1986 Act, above plea supported by the said judgments, needs to be rejected.

In the case of M/s S.B.P. and Co.'s case (supra), the Hon'ble Supreme Court dealt with altogether a different issue i.e. what is the nature of function of the Chief Justice or his designate, under Section 11 of the 1996 Act. Whether it is purely an administrative function or the Chief Justice or his designate, has the power to adjudicate upon the issues like existence of Arbitration clause in the Agreement/its validity. None of the provisions of 1986 Act were under consideration. The Hon'ble Supreme Court in M/s S.B.P. and Co.'s case (supra) discussed in detail, the provisions of the 1996 Act, and then gave a finding that powers of the Chief Justice of India or the High Court, under Section 11 (6) is not an administrative power but it is a judicial power. When discussing the question, as to who would fall within the definition of Judicial Authority, in terms of Section (8) of the 1996 Act, by making reference to ratio of judgment in the case Fair Air Engineers Pvt. Ltd.  &  anr. Vs. N.K. Modi, III (1996) CPJ 1 (SC) = (1996 (6) SCC 385, it was only said that judicial authority will include the Courts, and also specific Tribunals like Consumer  Fora. Whether the Consumer Fora is bound to refer the matter to the Arbitrator, was not under consideration, in the above case.

The part of ratio of judgment in case Fair Air Engineers Pvt. Ltd.  &  anr.'s case(supra) dealing with above aspect, was not discussed in M/s S.B.P. and Co.s case (supra). In the former judgment besides opining that Consumer  Fora have all the trappings of the judicial authority, further, by making reference to the provisions of Section 34 of the Arbitration Act,1940 viz a viz Section 3 of 1986 Act, in Fair Air Engineers Pvt. Ltd.  &  anr.'s case (supra),it was observed as under:-

“It would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the CPC. Thereby, as seen, Section 34 of the Act does not confer and automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on their own and on the peculiar facts and circumstances of the particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.”

It was specifically opined that the remedy under Section 3 of the 1986 Act, is in addition to and not in derogation to any other remedy available to an individual.

The above question was again dealt with, by the Hon'ble Supreme Court of India, in National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy  &  anr., I (2012) CPJ 1 (SC).  Taking note of the provisions of 1996 Act and Section 3 of the 1986 Act, it was observed as under:-

“29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2-Judge Bench interpreted that section and held as under:

“the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words ‘in derogation of the provisions of any other law for the time being in force’ would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.

30. In Skypak Couriers Limited v. Tata Chemicals Limited (supra), this Court observed:

“Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.”

31. In Trans Mediterranean Airways v. Universal Exports (supra), it was observed:

“In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy”.

Ratio of the judgments have left nothing to chance. It was mandated that even in the case of special legislation, it is permissible for an individual to avail remedy, under the 1986 Act. The National Commission, in a case titled as DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013 after taking ratio of judgment in the case of M/s S.B.P. and Co.'s case (supra), came to a specific conclusion that remedy provided under Section 3 of the 1986 Act is in addition to and not in derogation of the provisions of any other law, for the time being in force. It was specifically stated that ratio of judgment passed in M/s S.B.P. and Co.'s case (supra), will not debar a Consumer Fora from entertaining the complaint, even in cases where an alternative remedy of Arbitration is provided. Vide that judgment many Revision-Petitions were decided.

Feeling aggrieved against the order dated 13.05.2013, passed by the National Commission, Rosedale Developers Private Limited/Opposite Party challenged above order in the Hon'ble Supreme Court. In the case of Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), the  Hon'ble Supreme Court of India, by making reference to the ratio of  judgment in the case M/s S.B.P. and Co.'s case (supra),  observed that the judgment has no bearing on the issue, as to whether in the face of an Arbitration Clause, Jurisdiction  can be exercised by the Consumer  Fora or not. In that judgment, the Supreme Court had not interpreted the provisions of 1996 Act in the light of the provisions contained in 1986 Act. It was further observed that the observation made in that judgment that Section 8 of the 1996 Act is mandatory, cannot lead to an inference that the Consumer  Fora is bound to make a reference to the Arbitral Tribunal. As such, the facts of Sudarshan Vyapar Pvt. Ltd. and another's and Raj Kumar Singal's cases (supra) relied upon by Counsel for Opposite Parties No.1 and 2, cannot be applied to the facts of the present case.

The position has further been clarified by the National Commission, in the latest Judgment titled as Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited, Consumer Complaint No.427 of 2014 (alongwith other 23 connected cases), decided on 08.06.2015. It was observed as under:-

“It was also contended by the learned counsel for the opposite party that since the agreements between the parties contains arbitration clause, arbitration and not a complaint before this Commission is the appropriate remedy. I, however, find no merit in this contention. As provided in Section 3 of the Consumer Protection Act, the provision of this Act are in addition to the other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching a consumer forum in a case of deficiency in the services rendered to him by the service provider or adoption of unfair trade practices by him. This issue came up for consideration of the Hon’ble Supreme Court in National Seeds Corporation Vs. M. Madhusudhan Reddy  &  anr. (2012)2 SCC 506 and after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C.P. Act it was held that the plain language of Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.  The Hon’ble Supreme Court has also held that the complaint filed by a consumer before the consumer fora would be maintainable despite their being an arbitration clause in the agreement to refer the dispute to the Arbitrator. In view of the above referred authoritative pronouncement of the Hon’ble Supreme Court which was later followed by a Three Members Bench of this Commission in DLF Ltd. Vs. Mridul Estate Pvt. Ltd., R.P. No.412 of 2011 decided on 13-05-2013, the aforesaid contention advanced by the learned counsel for the opposite party is liable to be rejected.”

Reading of ratio of the judgments referred to above, make it clear that in case of  M/s S.B.P. and Co.'s case (supra), the issue before the Supreme Court of India was altogether different. The provisions of 1986 Act were not under consideration viz. a viz. the provisions of 1996 Act.  As such, the ratio of judgments referred to above, makes it very clear that the judgments in Sudarshan Vyapar Pvt. Ltd. and another's and Raj Kumar Singal's cases (supra), were given by wrongly interpreting the ratio of M/s S.B.P. and Co.'s case (supra).

In view of the above, it is held that the submission of Counsel for Opposite Parties No.1 and 2, that  the complaint filed under Section 17 of the Act, was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Buyer’s Agreement, being devoid of merit, stands rejected.

29.       Not only this, in the latest judgment titled as Mahindra Holidays & Resorts India Ltd. Vs. Adnan Samoon Rassiawala & 6 Ors., First Appeal No. 127 of 2016, decided on 18.03.2016, the National Commission observed as under:-

“The short question for consideration in this Appeal is as to whether the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short “the State Commission”) was justified in dismissing the application filed by the Appellant, the Opposite Party in the Complaint, under Section-8 of the Arbitration and Conciliation Act, 1996, seeking stay of the proceedings in the Complaint and for referring the matter to arbitration, in view of the fact that there was an Arbitration Agreement between the parties.

Though Mr. Pattjoshi, learned Senior Counsel, has made valiant attempt to convince us that in the light of the decision of the Hon’ble Delhi High Court in HDFC Bank Ltd. v. Satpal Singh Bakshi, 2013 (134) DRJ 566 (FB), the parties were bound by the Arbitration Agreement and in view of the clear provision of Section-8 of the said Act, the dispute, subject matter of the Complaint, ought to have been referred to arbitration, yet we are unable to persuade ourselves to agree with the learned Senior Counsel.  The issue sought to be raised is no more res integra as stands concluded by a number of authoritative pronouncements by the Hon’ble Supreme Court (see Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (dead) through LRs & Ors., (2004) 1 SCC 305; Skypak Couriers Ltd. v. Tata Chemicals Ltd., (2000) 5 SCC 294; and National Seeds Corporation Ltd. v. Madusudan Reddy, (2012) 2 SCC 506).

In light of the said decisions of the Hon’ble Supreme Court, directly on the point, decision of the High Court cannot be relied upon, particularly when none of the afore-noted decisions have been noticed in the High Court’s decision, on which reliance has been placed by the learned Senior Counsel.

We do not find any illegality in the impugned order, warranting our interference.

Consequently, the Appeal fails and is dismissed in limine”.

30.       Now it is to be seen, whether, after making amendment in Section 8 of the principal Act, any additional rights have accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling disputes through an Arbitrator, this Commission is not empowered to entertain a consumer complaint.

            As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act.

31.       Now, we will have to see what difference has been made by effecting amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to Consumer Foras  to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist for arbitrator, notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said. Otherwise also, as has been stated in the earlier part of this order, where there is any ambiguity in understanding meaning of provision of law, or where two interpretations are possible, one beneficial to the consumer would be accepted.
32.       We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present cases, the consumers/complainants have spent their entire life savings to get a plot, so that they can construct a house thereon. Their hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  the complaint is supposed to be decided within three months, from the date of service of the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act,  the consumer will be forced to (as in the present case) pay huge expenses. As in the present case, the complainant is claiming refund of Rs.65,56,513/- alongwith interest, compensation and litigation costs, aggregate value whereof, if added may be near about Rs.1 crore. In that event, the complainant will be forced to pay an amount of Rs.1,68,750/-  towards her share of Arbitrator fees. Not only as above, it is admissible to an Arbitrator, to decide the dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of General Assembly Resolution No.39/248 and the provisions of 1986 Act. In view of above, the ground raised by Counsel for opposite party no.1, stands rejected.
33.       It is argued with vehemence by Sh.Sanjeev Sharma, Senior Advocate, that there is a contract to sell piece of land only to the complainant. No service was to be provided as alleged, to the complainant, as such, she would not fall within the definition of a consumer and thus complaint deserves to be dismissed.

            This plea has been refuted by Counsel for the complainant. He has referred to the written statement filed by opposite party no.1, to say that development activities were attached to the sale of plot. The payment plan was originally time bound; however, it was converted into development linked plan. He has referred to various communications, to say that it is virtually admitted by the opposite parties that it is incumbent upon them, to provide basic facilities, before handing over possession of the plot to the complainant. It appears that plea raised by Counsel for opposite party no.1, is without any justification. In the Agreement dated 19.08.2011, Clause 21.2 of the General Clauses reads thus:-

“The Company shall carry out the internal development within the IREO Hamlet project, which inter alia includes laying of roads, water lines, sewer lines, electrical lines etc. However, it is understood that external linkages for these services beyond the periphery of the IREO Hamlet project, such as water lines, sewer lines, storm water drains, roads, electricity, horticulture and other such integral parts are to be provided by the State Government and/or the local authorities.”

34.       It is specifically stated that Company shall carry out internal development within the project, which included laying of roads, water lines, sewer lines, electrical lines etc., however, external development thereof, will be the responsibility of State Government. Above provision leaves no doubt that possession of fully developed plot over which construction can be raised, was a promise made by the opposite parties, to the complainant. Not only as above, IREO project is a part of Mega Housing Project. If it is so, it cannot be said that piece of land will be sold to a consumer, without making any development. The said Mega Housing Project is covered under the provisions of Punjab Apartment and Property Regulation Act  1995.

            Further, when we look into interse communication between the parties, it became apparently clear that there was a promise to make development and then handover possession of the plot, to the complainant.  Through email dated 28.01.2015, it was brought to the notice of the Customer Care Branch of the opposite parties, by the complainant that development at the site is not complete. The said email was replied to, by the Customer Care Branch of the opposite parties on 28.01.2015, at 4.52 P.M., itself(at page 70 of the file). The said reply reads thus:-

“On Wed. Jan 28, 2015 at 4.52 PM, Customer Care Chandigarh

Dear Mr.Arora,

With reference to your email dated 28-Jan-2015 wherein you have raised certain concerns regarding the status of development at site.

Please note that IREO Hamlet is a plotted colony project which is not about raising vertical construction but rather laying out of conduits, services and infrastructure below ground and therefore there is little demonstration of such development work. There are four services i.e. sewerage, rain water harvesting, laying of water lines and electrical lines which are to be laid underneath the ground. The work above ground level shall be done only after the completion of work underneath the ground.

We would like to update you that approximately 99%  of the excavation works for the sewerage and storm water piping has already been done at site. The PCC work for sewerage and storm water pipes as well as the laying of sewerage and storm water pipes is in progress and around 98% of work scope for these items has been completed. Brick work and plastering for construction of boundary wall as per present scope i.e. 300 rmt has been completed including the panting works and  all the (the total 9 nos) rainwater harvesting pits have already been constructed and bore work of 9 RWH completed. Approx. 89% GSB, 83% WBM and 89% kerb stone fixing is completed for road works. Also around 90% water supply DI piping is laid at site. In addition to this around 89% fixing of drain channels, 95% of poles foundation casted, 85% poles have been installed and approx. 95% electrical cable has been laid at site. Brickwork of one of guardroom is completed out of two. Guard House finishes work is also completed and entrance gates have been fixed. In addition to this around 66% pathway pavers has been fixed and electric meter room finishes work is in progress.

With regard to approach road, please note that the Government is doing the needful and has assured us that it would complete the process by the time we hand over possession of the plots and execute the conveyance deeds. However, we have no direct control over the speed of progress of the endeavors of the Government. We have, at our end, fulfilled our obligations to the Government by making upfront payment of all EDC charges demanded by them (even though we have not yet recovered it from our customers). Further note that our right to market the Project in accordance with the approvals from the Government are neither dependent on the actions of the Government with regard to its own responsibilities and neither have we given any assurance in this regard in the Agreement, or, at any time subsequently. However, till such time the approach road is ready, access to the site shall be available through the temporary roads developed by us.

Further note that all demands have been raised by us in accordance with the agreed payment plan on achievement of the relevant milestone.

We may also like to apprise you that the development work at site is going on in full progress and we are targeting to start offering possession soon. Therefore you are requested to make the payment as per the demand raised at the earliest.

Assuring you best of services.

Regards CRM Tea”. 

35.       Reading of above communication leaves no doubt, that it was bounden duty of the opposite parties  to provide basic facilities and infrastructure to make the plot habitable. Otherwise also, under similar circumstances, such a plea was rejected by this Commission, in a case titled as Sh.Aditya Sharma Vs. DLF Universal Limited, Consumer Complaint No.235 of 2015 decided on 09.03.2016, by holding as under:-

“No doubt, to defeat the claim of the complainant, a stand was also taken by the opposite parties, that they were only liable to deliver possession of plot, in question, to the complainant, and as far as the provision of basic amenities is concerned, he cannot claim the same, as per the terms and conditions contained in the Agreement.  This stand of the opposite parties has no legs to stand. It may be stated here that, had only possession of plot was to be delivered to the complainant, without providing any basic amenities in the project, then why the opposite parties need 24 months, to deliver possession thereof, as per Clause 32 of the Agreement is not explained. Whether it is mentioned in the Agreement or not, the basic amenities/facilities such as roads, sewerage, drinking water, electricity, street lights, drainage,  etc. etc. are mandatory to be provided to an allottee, before delivering him possession of a plot, so that he is able to start construction work accordingly and live a smooth life. Even otherwise, it is of common knowledge, that if basic amenities such as roads, water, electricity, are not in existence at the site, how could an allottee start construction work on a plot. The complainant was not allotted a plot on an island. InHaryana State Agricultural Marketing Board vs. Bishamber Dayal Goyal and Ors., Civil Appeal No.3122 of 2006, decided on 26.03.2014, the Hon’ble Supreme Court, while placing reliance on Municipal Corporation, Chandigarh &Ors. vs. Shantikunj Investment (P) Ltd. & Ors., (2006) 4 SCC 109, held that though it was not a condition precedent but there is an obligation on the part of the Administration to provide necessary facilities such as roads, drainage, drinking water, sewerage, street lighting etc. etc., for full enjoyment of the same by allottees.”

36.       Not only as above, if we read contents of written reply filed by opposite party no.1, in para 3 sub-paras (i) to (viii), it leaves no doubt, in our mind that basic facilities likeroads, sewerage, drinking water, electricity, street lights, drainage etc. were to be provided by the opposite parties to the complainant. Not only as above, as has been stated in earlier part of this order, initially payment towards price of the plot was to be made in time bound manner, however, thereafter, it was converted into development linked plan. Amount was to be paid in parts, as per development of the project, taking place at the spot. In view of above facts, arguments raised by Counsel for opposite party no.1, stand rejected.
37.       It has come on record, that opposite parties have failed to offer possession of the plot, within the stipulated period. Agreement was signed on 19.08.2011. Possession of the plot was to be delivered by 18.02.2014. It could have been delayed by 12 months more, on payment of delayed compensation amount. There is nothing on record to show that ever an attempt was made to offer delayed compensation amount, to the complainants. Under what circumstances, this delay of 12 months, against the penal amount can be caused, it will be discussed in later part of this order. As has been held above,  only paper possession was offered on 21.05.2015. Whether mere offer of possession and that too after a delay, would disentitle the complainant to claim refund of amount paid or not. In Sh.Dharam Pal Gupta's case (supra) a similar question fell for determination before this Commission. This Commission in that case, held as under:-

 

“In a similar case, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, was decided by this Commission on 23.09.2015, noting ratio of the judgment of the National Commission, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund.

The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated date. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the National Commission, holding as under:-

“It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment,  with  grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

23.    As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants,  started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and  respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked,  then we fail to understand as to how  before completing the construction appellants demanded the aforesaid amount.  This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment,  subject to certain payments.

24.    Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from  the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period.  Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and  part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013,  which was against the terms of the Agreement.  The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013.  Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25.    The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another's case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date.  In the above case, it was laid down as a matter of fact that non-acceptance of possession after the agreed date, would not amount to rescinding of contract.

In the present case also, Opposite Parties No.1 and 2 committed breach of their obligation, in not offering possession of the plot, in question, within 12 months, whereof 15.01.2012 (Buyer's Agreement was signed on this date). As a matter of fact, possession of the plot was offered only on 15.10.2014. It is also on record that Buyer's Agreement was offered for signing, after about one year and two months of allotment of the plot. In the allotment letter, there was no stipulation to impose penal interest on delayed payment towards price of the plot, however, penal interest was imposed without any justification. When the Buyer's Agreement was signed, the schedule of payment annexed with the allotment letter was virtually over. Above facts clearly goes to show that Opposite Parties No.1 and 2 were deficient, in rendering service, to the complainant”. 

38.       In the present case also, the opposite parties have committed breach of their obligations in not offering possession of the plot, in question, within 30 months, whereof 19.08.2011, plus 12 months more against payment of delayed compensation amount. Contention of Counsel for opposite party no.1, that there was delay in making payment needs to be rejected. We have seen the chart given. The delay runs between one day to two months only, for which, penal interest/amount was charged by the opposite parties.
39.       On an application moved, vide order dated 15.10.2015, two Local Commissioners were appointed to inspect the project site, for apprising position of development at the site. The Local Commissioners submitted their report on 24.10.2015. Reading of the said report, makes it very clear that development was not complete at the spot, as on date. No approach road was available to the project. The land to construct road was not even acquired by the Government. Some narrow approach road to the project is provided, as per information, it runs through many villages in a zig-zag manner. With the report, photographs are annexed. Perusal thereof makes it very clear that most of the development which has been made at the site, is fresh. It appears to have been made after the date, when Local Commissioners were appointed on 15.10.2015. Everything appears to have been laid fresh. There is nothing on record, to show that approach gate on the backside and narrow road following the same is approved one. In rebuttal, some documents received under the RTI Act, 2005, have been placed on record, by the complainant, showing that necessary permissions/ approvals from the Competent Authorities were not obtained by the opposite parties, before possession of the plot was offered to her. Both the parties have filed objections against the said report. It is not necessary to go into details, of those objections, because even if it is admitted that development was complete on the date when the Local Commissioners visited the site, in view of the findings given above, no relief can be given to the opposite parties. Accordingly, contention of the opposite parties that possession of the plot was offered to the complainant, after complete development work, being devoid of merit, stands rejected.
40.       To defeat claim of the complainant, an objection was also raised by Counsel for opposite party no.1 that since the complainant has purchased the plot, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, as such, she would not fall within the definition of  consumer, as defined by Section 2 (1) (d) (ii) of the Act.

            It may be stated here that there is nothing, on the record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by opposite party no.1, 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. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. 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 plot, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite party no.1, in its written reply, therefore, being devoid of merit, is rejected.  

41.       Another frivolous objection was taken by Counsel for opposite party no.1, by stating that the plot, in question, is situated at Mohali, as such, only the State Consumer Disputes Redressal Commission, Punjab, has territorial Jurisdiction to entertain and decide the complaint.

            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/her. In the instant case, the Agreement, in respect of the plot, in question, was executed, at Chandigarh. Not only this, perusal of record reveals that almost all the letters including offer of possession dated 21.05.2015, were sent by Chandigarh office of the opposite parties, as the same bore the address “PUMA Realtors Private Limited, SCO No.6-7-8, First and Second Floor, Sector 9-D, Madhya Marg, Chandigarh”. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by Counsel for opposite party no.1, also stands rejected.

42.       Another objection was raised by Counsel for opposite party no.1 that since the complainant sought enforcement of the Agreement, in respect of the immoveable property, only a Civil Court can decide the complaint, and as such, consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the opposite parties, for purchasing the plot, in question, in the manner, referred to above. According to Clause 11.1 of the  Agreement, subject to force majeure conditions and reasons, beyond the control of the opposite parties, they were to deliver physical possession of the unit, within a period of 30 months, from the date of execution of the same (Agreement), with complete basic amenities, as provided in Clause 21.2. 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”

43.       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, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by her, as she falls within the definition of consumer, as stated above. In this view of the matter, the objection of opposite party no.1, in this regard, being devoid of merit, must fail, and the same stands rejected.
44.       Whether the complainant is entitled to refund of the entire amount deposited by her. It may be stated here that offer sent vide letter dated 21.05.2015, has been held to be a mere paper possession and as on date, the opposite parties are not in a position to deliver possession of the plot, in question. Under these circumstances, it is justifiable for the complainant to say no to the same. It was so said by the National Consumer Disputes Redressal Commission, New Delhi in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). In the above case, possession was not delivered in time. Complaint was filed for refund of amount paid. The State Commission partly allowed it. The builder was allowed to forfeit 10% of the deposited amount, on the ground that the complainant himself rescinded the contract by asking refund of the amount, as possession of the unit had already been offered to him. The remaining amount was allowed to be returned with interest. The complainant in that case was also awarded litigation cost etc. The builder namely Emaar MGF Land Limited went in appeal, which was dismissed, wherein it was specifically observed by the National Commission, that when the promoter/builder has violated material condition in not handing over possession, in time, it is not obligatory for the purchaser to accept possession after that date. The principle of law laid in the aforesaid case, is fully applicable to the instant case. On account of that, the complainant is entitled to get refund of amount deposited by her. In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her, as also escalation in prices.
45.       It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.65,56,513/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the opposite parties, for their own benefit. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest, for the period of delay in making payment of instalments.  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). In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs.65,56,513/- alongwith interest compounded quarterly @12% from the respective dates of deposits (less than the rate of interest charged by the opposite parties, in case of delayed payment), till realization.
46.       Further, to deny the claim of the complainant(s), it was also argued by Senior Counsel for the opposite parties/ builder that as per Clause 11.3 of the Agreement, they (complainants) could have opted for termination of the Agreement, only after the lapse of 42 months aforesaid, from the date of execution of the same (Agreement) i.e. 24 months plus (+) 6 months plus (+) 12 months, till the notice of possession is dispatched, whereas, on the other hand, in all the cases, possession has been offered, as such, the option to terminate the same (Agreement) by them (complainants) has been irrevocably lapsed.  Further, in some cases, since offer of possession has been made to the allottees, within the period of 42 months, from the date of execution of the Agreement, as such, they were barred to opt termination of the Agreement, as per Clause 11.3.

            Before discussing effect of aforesaid arguments, it is necessary to note down the provisions of Clauses 11.1 and 11.2 of the Agreement dated 19.08.2011. The provisions read thus:-

“11.1 - Subject to Force Majeure, as defined herein, and further subject to the Allottee having complied with all its obligations under the terms and conditions of this Agreement, and not being in default of any provision(s) of this Agreement including but not limited to the timely payment of all dues and charges including the total Sale Consideration, registration charges, stamp duty and other charges, and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to hand over the possession of the said Plot to the Allottee within a period of 24 (Twenty Four) months from the date of execution of this Agreement (“Commitment Period”). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 6 (Six) months (“Grace Period”), after the expiry of the said Commitment Period.

11.2-Subject to Clause 11.1, if the Company fails to offer possession of the said Plot to the Allottee by the end of the Grace Period, it shall be liable to pay to the Allottee compensation calculated at the rate of Rs.50/- (Rupees Fifty only) per sq. yd. of the area of the said Plot (“Delay Compensation”) for every month of delay until the actual date fixed by the Company for handing over of possession of the said Plot to the Allottee. The Allottee shall be entitled to payment against such ‘Delay Compensation’ only after completion of all documentation including registration of the Conveyance Deed”.

            Perusal of aforesaid provisions, makes it very clear that as per Clause 11.1, handing over possession of the plot is subject to force majeure circumstances. Clause 11.2 stipulates that the stipulation contained therein is subject to the provisions of Clause 11.1. It is not open to the builder to get 12 months, on payment of delayed compensation, as a matter of right. It has to be shown, whether there was any circumstance, which didn't allow providing of infrastructure at the site. No such circumstance has been added to claim above period of 12 months. Further, there is nothing on record to show that at the end of 30 months period, to get further period of 12 months, any attempt was made, to make offer of payment of delayed compensation, as envisaged in Clause 11.2 of the Agreement. Even in the notice of offer of possession, which has been held to be paper one, it is not even mentioned that payment of delayed compensation will be made to the complainant, on completion of documentation, including registration of the conveyance deed. The above said stipulation qua payment of delayed compensation amount, after registration of conveyance deed, appears to be draconian. It is totally one sided. As such, it could be termed as unfair trade practice, on the part of the opposite parties. Furthermore, in the present case, admittedly, possession of the plot was offered after the lapse of 42 months i.e. 24 months plus (+) 6 months plus (+) 12 months, as such, the above arguments need to be rejected.

            Otherwise also, as has been held in large number of cases, the payment of paltry amount of compensation, virtually would amount to no compensation for the loss caused to a consumer. The amount offered is not even equal to simple interest being offered by the Banks, against saving bank account. On account of inaction, on the part of the opposite parties, in not fulfilling their obligation under the contract, the very purpose of Agreement has failed and it is open to the complainant to claim refund of her amount, with interest, notwithstanding anything contained in Clause 11.3 of the Agreement.  The argument raised by Senior Counsel for the opposite parties, in this regard, being devoid of merit, is rejected.   

47.       We have noted with concern, a very serious deficiency committed by the opposite parties, in providing service to the complainant. As per admitted facts on record, External Development Charges (EDC) @Rs.1275.10 per square yard, are payable by the complainant to the opposite parties. Service tax is also payable by the complainant. As per record, EDC and service tax amount was paid in steps, by the complainant to the opposite parties. As per law and otherwise also, it is expected that the said amount might have been deposited by the opposite parties with the Government/Local Authorities, to provide necessary external infrastructure needed for enjoyment of the plots/units purchased by the consumers. As has been discussed in earlier part of this order, 30 months period was available without penalty, with the opposite parties to press with the Government, on payment of EDC, for providing necessary external infrastructure. Very conveniently, in Clause 21.2 it was provided by the opposite parties that they shall carry out only internal development, within the boundary of the project, which includes laying of roads, water lines, sewer lines, electric lines etc. However, the external linkages for those services, beyond the periphery of the project, is to be provided by the State Government or the Local Authorities. Even if it is presumed, only for the sake of arguments, as on today, the opposite parties may have laid down water lines, sewer lines, storm water drains, roads, electricity, horticulture etc., within the project, admittedly, those lines are not connected with the main lines, to be provided by the State Government or the Local Authorities. For a proper use of plots/units purchased, it is necessary that those lines are connected with the main lines, so that there is no hindrance in enjoying the property purchased.

            There is nothing on record to show that after depositing of EDC, as collected by the opposite parties from the consumers, the said amount was deposited with the Government, in time, and further the matter was taken up with the Government, to provide external infrastructure connecting the project with the main sewerage lines etc. The opposite parties had 30 months of time, which this Commission feels, was sufficient for the State Government or the Local Authorities to complete external infrastructure. It is bounden duty of the real estate developer/opposite parties to ensure that the external infrastructure is complete by the time, possession is to be delivered. If the Local Authorities were not acting, despite receipt of EDC, it was duty of the real estate developer, to take legal recourse. In the present case, it was not done so.  The opposite parties cannot wash of their hands by simply stating that external infrastructure will be provided by the State Government/Local Authorities. If the external infrastructure is not provided, where will the purchasers go? How their grievance will be redressed. If the requisite infrastructure is not available, the developed colonies will turn into slums, within few years. Such a development cannot be termed as regulated development. By not making any efforts, in taking up matter with the State Government/Local Authorities, to ensure that external infrastructure is provided within the stipulated period, the opposite parties have committed deficiency in providing service.

48.       No other point, was urged, by Counsel for the complainant and opposite party no.1.
49.       For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties/builder(s), jointly and severally, are directed as under:-

 

 

1. To  refund the amount of   Rs.65,56,513/- to  the complainant, alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/-to the complainant.

 

 

 

 

Consumer Complaint No.171 of 2015 titled as Varun Narang and another Vs. PUMA Realtors Pvt. Limited:-

1. To  refund the amount of   Rs.59,52,515/- to  the complainant,  alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/-to the complainant.

 

 

Consumer Complaint No.172 of 2015 titled as Gurvinder Singh and another Vs. PUMA Realtors Pvt. Limited:-

1. To  refund the amount of   Rs.57,97,645/- to  the complainant,  alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/-to the complainant.

 

 

Consumer Complaint No.173 of 2015 titled as Paramjit Singh Saini and another Vs. PUMA Realtors Pvt. Limited:-

1. To  refund the amount of   Rs.69,71,778/- to  the complainant,  alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/-to the complainant.

 

 

Consumer Complaint No.176 of 2015 titled as Gyanesh Kumar Bhatnagar Vs. PUMA Realtors Pvt. Limited:-

1. To  refund the amount of   Rs.58,82,625/- to  the complainant,  alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/-to the complainant.

 

 

Consumer Complaint No.177 of 2015 titled as Gurdeep Singh Vs. PUMA Realtors Pvt. Limited:-

1. To  refund the amount of   Rs.77,46,938/- to  the complainant,  alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/-to the complainant.

 

Consumer Complaint No.180 of 2015 titled as Jaswinder Singh and ors. Vs. PUMA Realtors Pvt. Limited:-

1. To refund the amount of   Rs.63,60,410.33Ps. to the complainant,  alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.70,000/-to the complainant.

 

Consumer Complaint No.182 of 2015 titled as Ashwani Kumar and another Vs. M/s PUMA Realtors Pvt. Limited:-

1. To  refund the amount of   Rs.59,03,642/- to  the complainant,  alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.70,000/-to the complainant.

 

Consumer Complaint No.209 of 2015 titled as Mrs.Nisha Garg and another Vs. M/s PUMA Realtors Pvt. Limited:-

1. To  refund the amount of   Rs.63,47,714/- to  the complainant,  alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.70,000/-to the complainant.

 

Consumer Complaint No.213 of 2015 titled as Neenu Goel Vs. M/s PUMA Realtors Pvt. Limited:-

 

1. To  refund the amount of   Rs.61,45,852/- to  the complainant,  alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.40,000/-to the complainant.

 

Consumer Complaint No.214 of 2015 titled as Ms.Mona Milkha Singh Vs. PUMA Realtors Pvt. Limited:-

1. To  refund the amount of   Rs.35,56,873/- to  the complainant,  alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/-to the complainant.
4. To return the cheque dated 28.07.2015 for a sum of Rs.44,50,584/- to the complainant, is still retained with them.

 

Consumer Complaint No.231 of 2015 titled as Ram Kumar Singh Vs. PUMA Realtors Pvt. Limited:-

1. To  refund the amount of   Rs.62,66,889/- to  the complainant,  alongwith interest compounded quarterly @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/-to the complainant.

 

Consumer Complaint No.265 of 2015 titled as Sandeep Gupta Vs. M/s PUMA Realtors Pvt. Limited:-

1. To  refund the amount of   Rs.61,07,242/- to  the complainant,  alongwith interest compounded quarterly  @12% from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.70,000/-to the complainant.

50.       The payment of awarded amounts (in all the complaints) mentioned at sr.nos.(i) to (iii), shall be made by the opposite parties, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay the amount mentioned at sr.no.(i), alongwith penal interest compounded quarterly @15% instead of @12%, from the respective dates of deposits onwards, and interest compounded quarterly @12%, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
51.       However, it is made clear that in the cases, where the complainant(s) has/have availed loan facility from any financial institution(s), it shall have the first charge of the amount payable, to the extent, the same is due to be paid by him/her (complainant(s).
52.       The miscellaneous applications moved by the respective parties, in relation to the objections filed against the Local Commissioners' report dated 24.10.2015, alongwith photographs, are dismissed, having been rendered infructuous. However, the request made for placing on record, a copy of the Local Commissioner's report dated 24.10.2015, in all the cases, is accepted.
53.       Certified Copies of this order be sent to the parties, free of charge.
54.       The file be consigned to Record Room, after completion.

Pronounced.

01.04.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.