Chandigarh

StateCommission

CC/597/2016

Harmohinder Singh - Complainant(s)

Versus

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

Parveen Moudgil, Adv.

10 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	597 of 2016
Date of Institution	:	16.09.2016
Date of Decision	:	10.03.2017

 

Mr. Harmohinder Singh S/o Sh. Balvinder Singh R/o 65A/L Model Town, Yamuna Nagar, Haryana.

……Complainant.

V e r s u s

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

….. Opposite Parties.

 

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

 

 

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

               MR. DEV RAJ, MEMBER.

               MRS. PADMA PANDEY, MEMBER

 

Argued by: Sh. Rajat Chopra, Advocate for the complainant.

                  Sh. Ramnik Gupta, Advocate for the Opposite Parties.

 

PER MR. DEV RAJ, MEMBER

             The facts, in brief, are that allured by numerous advertisements in various newspapers and assurances, the complainant, in the year 2010, applied for allotment of a residential plot in the project of the Opposite Parties namely, ‘IREO HAMLET’ in Sector 98, SAS Nagar, Mohali and paid, in all, a sum of Rs.73,09,560/- to the Opposite Parties, as per details of payments (Annexure C-1). Plot Buyer’s Agreement was executed between the parties on 03.01.2012 (Annexure C-2). The payment plan opted by the complainant was changed from Time Linked to Development Linked. On visiting the site, the complainant was shocked to seek that there was no development and even the roads dividing Sectors 86-87 and approach road to reach the site were not there. Again on visiting in 2013, the complainant did not find any development at the site and several basic amenities and facilities were lacking, in as much as, there was no boundary wall, no overhead tanks or water linkage to the project, no club house building, green belt was yet to be developed and there was no arrangement for water supply, sewerage, electricity etc.

2.           Relying upon the report of Local Commissioner dated 24.10.2015 appointed in the case of ‘Abha Arora Vs. Puma Realtors Pvt. Ltd.’ earlier decided by this Commission, it was stated that as per the said report, neither the Opposite Parties have completed development and basic amenities at the site nor they were having all the necessary sanctions/approvals from the competent authorities uptil October 2015. In order to prove that the project severely lacked basic amenities and not fit for habitation, the complainant has also annexed information obtained under RTI as Annexures C-5 to C10). It was further stated that left with no other alternative, the complainant served legal notice dated 13.06.2016 (Annexure C-11) upon the Opposite Parties for termination of Agreement and refund of the amount alongwith interest, which was not replied.

3.           It was further stated that as per Clause 11.1 of the Agreement, possession of the plot was to be delivered by the Opposite Parties within 24 months from the date of its execution plus 6 months grace period. It was further stated that as per Clause 11.2, the Opposite Parties were to pay delay compensation to the complainant @Rs.50/- per sq. yard of the area of the said plot for every month of delay until the actual date fixed for handing over of possession. It was further stated that notice of possession dated 12.05.2015 (Annexure C-12) sent by the Opposite Parties did not mention about final demarcation and measurement of plot, without which possession could not be handed over. It was further stated that aforesaid possession letter has been issued in a hurried manner without bothering to complete all development work at the project. It was further stated that the Opposite Parties have not obtained completion-certificate till date as per RTI information (Annexure C-13).

4.           Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Party to refund Rs73,09,560/- alongwith interest @18% per annum from the actual date of deposit; pay Rs.10,00,000/- as compensation on account of mental agony and Rs.50,000/- as litigation expenses.

5.           The Opposite Parties, in their written statement, took-up certain preliminary objections, to the effect, that the complainant acting under dishonest and malafide intentions concealed the very crucial and material fact of his admission in letter dated 26.10.2015 that he was satisfied with development and requested the        Opposite Parties to bear the cost of stamp                 duty, registration and incidental charges; that the complaint  was  liable  to  be  dismissed, due to existence of arbitration Clause No.33 in the Apartment Buyer’s Agreement dated 03.01.2012; that since the present complaint related to enforcement of an agreement to sell/purchase of a residential plot i.e. an immovable property and hence, was not covered under the Act; that the allegations being of contractual nature were triable in a Civil Court and that the complainant did not hire any services of Opposite Party No.1, as the parties did not enter into any contract for hiring the services and there is no agreement for payment of any amount towards consideration of hiring of the alleged services of Opposite Party No.1. It was stated that neither the complainant had paid, nor had agreed to pay any amount towards hiring of the alleged services and whatever amount was paid or was agreed to be paid by the complainant was towards consideration price of the apartment in advance only to Opposite Party No.1. Further objections were raised that the complainant did not book the plot for his personal use but for investment/commercial purpose; that this Commission has no territorial jurisdiction on account of existence of Clause 35 in the Agreement and that the relief claimed is beyond Section 14(1)(d) of the  1986 Act. 

6.           On merits, it was stated that the complainant blatantly violated Clause 19.1 of the Agreement with impunity and also did not adhere to the payment schedule and as such, willfully defaulted in making timely payments. It was further stated that the complainant vide recital No.‘K’ of the said Agreement himself represented that he was not influenced by any kind of sales brochures, advertisements, representations, warranties etc. and he had relied upon his own independent investigations while deciding to purchase the plot, in question. It was denied that the complainant was assured that the possession would be handed over within a period of 24 months from the date of execution of the Agreement. It was further stated that the period of handing over of the plot was subject to the complainant complying with all his obligations under the terms and conditions of the Agreement. It was further stated that the Opposite Parties have duly complied with Clause No.21.2 of the Agreement. It was further stated that Clause 11 of the Agreement regarding possession is clear and explicit. It was further stated that the development work at the site commenced on 01.05.2013 and was carried on in full swing in a continuous manner.  It was further stated that vide letter dated 26.10.2015, the complainant duly acknowledge the development at the site and had expressed his desire for execution of the conveyance deed at the expenses of the Opposite Parties. It was further stated that since the complainant had already accepted the notice of possession of developed plot, as such, he has no cause of action to file the present complaint. 

7.           It was further stated that the Opposite Parties are possessed of all the necessary approvals and permissions to sell, develop and offer possession of the plots to their allotees but not limited to the notification dated 14.08.2008 issued by Government of Punjab exempting the Opposite Parties from the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short ‘PAPRA 1995’). It was further stated that NOC for withdrawal of ground water was granted on 19.08.2011, environmental clearance was granted on 30.11.2012; NOC by Punjab Pollution Control Board was granted on 14.05.2013, which was then extended vide letters dated 09.12.2014, 29.06.2015 & 20.07.2016; service plans were approved on 18.05.2015; NOC by PSPCL was granted on 08.07.2015; approval for commissioning of electrical installations was accorded on 07.08.2015; consent to operate was granted by Punjab Pollution Control Board on 05.01.2016 and Bank Guarantee to the tune of Rs.3,24,10,301/- was submitted to PSPCL on 22.03.2016. It was further stated that even the report of Local Commissioner filed in complaint titled ‘Abha Arora Vs. PUMA Realtors Pvt. Ltd. and another’, bearing No.170 of 2015, clearly unveils the false allegations made by the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

8.          The complainant filed rejoinder, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.

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

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

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

12.         It is evident, on record, that Plot No.173 in the residential project “IREO Hamlet” admeasuring 250.59 sq. yard, Sector 98, SAS Nagar, Mohali, was allotted to the complainant, Basic Sale Price whereof was Rs.27,000/- per sq. yard besides External Development Charges (EDC) @Rs.1,275.10 per sq. yard and IFMS charges @Rs.350/- per sq. yard. Admittedly, Plot Buyer’s Agreement was executed between the complainant and the Opposite Parties on 03.01.2012 (Annexure C-2) at Chandigarh. The payment against the aforesaid plot was to be regulated as per payment plan, Annexure I (at Page 53 of the file). Against the total price of Rs.71,73,164.00 of the plot including External Development Charges and IFMS Charges, the complainant made payment in the sum of Rs.73,09,560.00. As admitted by the Opposite Parties, the development work started at the site only on 01.05.2013, almost 1½ years after the execution of Plot Buyer’s Agreement dated 03.01.2012. The possession was offered on 12.05.2015 and the present complaint was filed on 16.09.2016 i.e. after 16 months from offer of possession. The case of complainant is that possession was offered hurriedly without completion of development and basic amenities such as permanent electricity, roads, sewerage, drainage and storm water.

13.             It was argued by Counsel for the Opposite Parties that in the face of existence of arbitration clause No.33 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. This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

25.        The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

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

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

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

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

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

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

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

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

28.      Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

29.       In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

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

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

30.     Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

31.        Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

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 case, the complainant has spent his life savings to get a unit, for his residential purpose. His 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,  a complaint is supposed to be decided within three months, from the date of service to 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 (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

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

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

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

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

             In view of the above, the objection raised by Counsel for the Opposite Parties, being devoid of merit, is rejected.

14.         To defeat claim of the complainant, the next objection raised by the Opposite Parties was that since the complainant had purchased the unit, in question, for investment/commercial purpose i.e. for resale, as and when there was escalation in the prices of real estate, as such, he would not fall within the definition of consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. It may be stated here that there is nothing, on 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 the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. It may be stated here that 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 flat, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited”, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or hand purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

 

The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in the written reply, therefore, being devoid of merit, is rejected.  

15.         Another objection raised by Counsel for the Opposite Parties was that since the complainant did not buy goods and did not hire any services, and was seeking enforcement of the Agreement in respect of immovable property, therefore, only a Civil Court can decide the complaint, and consumer complaint was not maintainable. It was further stated that there is no agreement for payment of any amount towards consideration of hiring of the alleged services of the Opposite Parties. It was stated that neither the complainant had paid, nor had agreed to pay any amount towards hiring of the alleged services and whatever amount was paid or was agreed to be paid by the complainant was towards the payment of the consideration price of the apartment in advance only to the Opposite Parties. 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”

 

 

16.         From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he falls within the definition of consumer, as stated above. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

17.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, the Buyer’s Agreement was executed at Chandigarh. Not only this, the letter offering possession dated 12.05.2015 was issued by the Opposite Parties from their Chandigarh office. Since, as per documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.

18.         No doubt, in the written version, an objection was also taken by the Opposite Parties, that as per Clause 35 of the Agreement, the Courts at Mohali and the Punjab and Haryana High Court at Chandigarh alone, shall have the exclusive Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

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

20.         Coming to the merits of the case, the complainant, in the instant case, has sought refund of the amount alongwith interest, alleging that notice of possession dated 12.05.2015 was issued to him in a hurried manner without complete development/basic amenities at the site. To support his contention, he, in Para 3 (vii) & (viii) stated as under:-

“vii). That in order to prove that the project severely lacks basic amenities and is not fit for habitation and for the convenience of this Hon’ble Commission, all the relevant replies of RTIs are enclosed herewith:-

1. RTI Reply on behalf of GMADA on the question of offer of Possession which clearly states that Developers/Promoters have to complete all the development works, before handing-over the possession of plot/flats (Annexure C-5).
2. RTI Reply on behalf of PSPCL which clearly states that the project has not been provided electricity connection. (Annexure C-6). Rather, the Opposite Party has been issued temporary connection for construction purpose bearing no.3003006604 of 30 kilo watts as on 19/10/15 (Annexure C-7).
3. RTI reply on behalf of PSPCL which clearly states that PSPCL has not sanctioned any regular permanent electricity load for residential purpose nor Opposite Party has deposited any amount to PSPCL on account of Security/Estimate cost. Therefore, no load of electricity has been released for regular connection by PSPCL for The Project “Ireo-Hemlet” in Sector 98 Mohali on 31.12.2015 (Annexure C-8).
4. RTI Reply on behalf of GMADA which clearly states that the Vertical Roads (also known as Approach Roads) dividing sectors 97-98 and Horizontal Roads dividing sectors 86-98 are not built, and can only be built after acquisition of lands (Annexure C-9).
5. RTI Reply on behalf of GMADA about the question relating to provision of sewerage, drainage and storm-water  lines which clearly establishes that in the new sectors which are being developed, the Sewerage and storm-water drainage lines are provided on Sector-Dividing roads. It means that when sector dividing roads are not built as yet, therefore, the sewerage and storm-water drainage lines are also not provided yet. In other words, connection of internal services (sewerage, drainage, storm water lines etc.) provided by the opposite parties are not connected with the Main Service lines of GMADA, which the opposite parties are bound to do. (Annexure C-10).

viii)  Keeping in view the above explained circumstances, it is clearly established that there is no permanent arrangement of electricity, roads, sewerage, drainage and storm-water etc. which are basic needs of any project. Then the opposite parties were not in a position to offer possession in the first place. It is only a paper possession and no actual development has been done.”

 

21.         On the other hand, the Opposite Parties, in the preliminary objections in their written statement have specifically submitted that the complainant acted dishonestly and malafidely as he concealed the very crucial and material fact of his admission in letter dated 26.10.2015 that he was satisfied with the development and had also requested the Opposite Parties to bear the cost of stamp duty, registration charges and incidental expenses for execution and registration of the Conveyance Deed. Counsel for the Opposite Parties vehemently argued that this material fact was concealed by the complainant in the complaint as well as in the legal notice dated 13.06.2016 (Annexure C-11). The contents of letter dated 26.10.2015 (Annexure OP-4), being relevant, are produced hereunder:-

“This is to inform you that I am ready and willing to get the Conveyance Deed executed and registered in respect of Plot No.173, IREO Hamlet, Sector 98, S.A.S. Nagar (Mohali), Punjab.

However, I have already made 100% payment of sales consideration. I request for payment of delayed compensation, after adjustment of Delayed Interest, if any, after the registration of conveyance deed in my favour.

I would also greatly appreciate if the Company can bear the cost of stamp duty on the sale consideration, registration charges and incidental expenses for execution and registration of the Conveyance Deed in my favour. This would help me in planning early start of construction on the said Plot. I would also seek your help in getting the Building Plans approved once the same are ready.

I have also inspected the site and I am satisfied with the development carried out by the Company.

I undertake and confirm that I shall make myself available to for execution and registration of the Conveyance Deed in my favour within 7 days of purchase of stamp duty papers of appropriate value.”

22.        The Counsel for the Opposite Parties argued that once the complainant admitted that after inspection of the site, he was satisfied with the development carried out by the company and his request for bearing the cost of stamp duty, registration charges for execution and registration of the Conveyance Deed, waiver of PLC and payment of delay compensation having been agreed to by the Opposite Parties vide email 06.01.2016 (Annexure OP-5), the complainant cannot be allowed to turn around and resile from the contents of his communication dated 26.10.2015 and seek refund, alleging that possession offered was a paper possession.

23.        We are not giving any finding qua completion of development on the basis of statement made by the complainant in his letter dated 26.10.2015. It seems that the complainant made statement that he was satisfied with the development with a view to seek concession in the cost of stamp duty, registration charges and incidental charges for execution and registration of conveyance deed. The complainant has, thus, not come with clean hands and concealed this material fact viz. letter dated 26.10.2015, which has significant bearing in the instant complaint.

24.        It may be stated here that Hon’ble Supreme Court of India in the case of “Kishore Samrite Vs. State of U.P. & Ors.”, Criminal Appeal No.1406 of 2012, decided on 18.10.2012, in Paras 34 and 35, interalia, held as under:-

34. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.

 

35. No litigant can play ‘hide and seek’ with the courts or adopt ‘pick and choose’. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy……..”

 

Further in S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar, 2004 (7) SCC 166, the Hon’ble Apex Court has held, interalia, as under:-

“As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it.”

 

Further the Hon’ble Apex Court in the matter of S.P. Chengalvaraya Naidu Vs. Jagannath, reported as 1994 AIR 853, held, interalia, as under:-

“A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.”   

 

25.        It is not in dispute that letter dated 26.10.2015 was not sent by the complainant but the complainant concealed this fact not only while sending legal notice dated 13.06.2016 (Annexure C-11) but also at the time of filing the complaint. Apparently, the complainant concealed this material fact from this Commission to avoid any adverse impact upon his case.

26.        In view of ratio of judgments in aforesaid cases and in view of fact that the complainant did not come to the Court with clean hands, we could have dismissed the complaint but since the complainant is a poor consumer, whose hard earned money has remained stuck with the Opposite Parties for the last more than five years, we are refraining ourselves in doing so. In the facts and circumstances of the case, backing out by the complainant from his own letter dated 26.10.2015, is taken as rescinding of contract by him and, therefore, we allow refund of the deposited amount to the complainant, by forfeiting 10% of the sale consideration of the plot, in question, on account of complainant’s resiling from his own communication dated 26.10.2015. Accordingly, the complainant is held entitled to refund of the amount minus 10% of the sale consideration of the plot in question, alongwith interest @10% per annum w.e.f. 26.10.2015 till the date of actual realization. The complainant deposited an amount of Rs.73,09,560.00 with the Opposite Parties. 10% of the total sale consideration of the plot, in question, viz. Rs.71,73,163.81, shall come to Rs.7,17,316.00. The complainant is, thus, held entitled to refund of Rs.65,92,244.00 i.e. (Rs.73,09,560.00 minus (-) Rs.7,17,316.00), alongwith interest @10% p.a. from 26.10.2015 till actual realization.

27.        The judgment relied upon by the Counsel for the complainant in case titled ‘Amit Goel Vs. M/s Puma Realtors Private Limited’, Complaint Case No.31 of 2016 decided by this Commission on 01.11.2016, is distinguishable on facts. In that case, though the complainant had submitted that he was satisfied with the development carried out by the Company but did not conceal that fact in his complaint. Relying upon the assurances of the Opposite Party, the complainant made the balance payments and cleared all the dues but the Opposite Party failed to keep its promise to get the conveyance deed for the plot, in question, executed despite repeated communications from the complainant. In the instant case, as already stated above, the complainant concealed letter dated 26.10.2015 and alleged deficiency on the basis of non-development. The facts, thus, being clearly distinguishable, are of no help to the complainant.

28.        In the facts and circumstances of the case, especially in view of  concealment of material fact by the complainant, we are not granting any compensation for mental agony and harassment. However, the complainant is held entitled for costs of litigation in the sum of Rs.35,000/-.

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

30.         For the reasons, recorded above, this complaint is partly accepted, with costs. The Opposite Parties are, jointly and severally, held liable and directed in the following manner:-

(i)    To refund the amount of Rs.65,92,244.00, to   the   complainant, alongwith interest @10% p.a. simple with effect from 26.10.2015 till realization, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)   To pay cost of litigation, to the tune of Rs.35,000/-, to the complainant within a period of 45 days from the date of receipt of a certified copy of the order.

(iii)  In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with interest @12% p.a. simple, w.e.f 26.10.2015 till realization and amount mentioned in Clause (ii) above, with interest @10% p.a. (simple) from the date of filing the complaint till realization.

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

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

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

Pronounced.

10.03.2017.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 [DEV RAJ]

MEMBER

 

 

[PADMA PANDEY]

 MEMBER

Ad