Chandigarh

StateCommission

CC/602/2016

Jogendra Pal Singh - Complainant(s)

Versus

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

Paras Money Goyal, Adv.

02 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	602 of 2016
Date of Institution	:	19.09.2016
Date of Decision	:	02.02.2017

 

1. Jogendra Pal Singh S/o Sh. Dharam Singh R/o H.No.697, Sector 80, Mohali, Punjab – 140308.
2. Gagandeep Singh Arora son of Jogendra Pal Singh, R/o H.No.697, Sector 80, Mohali, Punjab – 140308.

At present residing at 24 Babington court Gower Street Derby U.K. DE11RH.

……Complainants

V e r s u s

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

….. Opposite Parties.

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

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

                  Opposite Party No.2 not served, in view of statement given by Counsel for Opposite Party No.1 on 21.09.2016.

 

Complaint case No.	:	641 of 2016
Date of Institution	:	28.09.2016
Date of Decision	:	02.02.2017

 

1. Shamsheer Tandon w/o Sh. Amit Tandon,
2. Amit Tandon S/o Sh. V. K. Tandon,

Both presently residing at House No.-1305, Sector – 50/B, Progressive Society, Chandigarh.

……Complainants

V e r s u s

1. M/s Puma Realtors Pvt. Ltd. through its Managing Director, Registered Office: No.-5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074.
2. Managing Director, M/s Puma Realtors Pvt. Ltd. Registered Office: No.-5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074.
3. M/s Puma Realtors Pvt. Ltd., through its Branch Head/Branch Manager, SCO No.6-8, First & Second Floors, Sector-9D, Chandigarh.
4. Sunaina Minhas D/o Maj. Arbinder Singh, Authorized Signatory, M/s Puma Realtors Pvt. Ltd., SCO No.6-8, First & Second Floors, Sector-9D, Chandigarh.
5. Ireo Rise (Project of M/s Puma Realtors Pvt. Ltd.) through its Manager/Incharge, Sector -99, Mohali (Punjab).

….. Opposite Parties.

Argued by: Sh.Harsh Tandon, Advocate for the complainants.

                  Sh. Ramnik Gupta, Advocate for Opposite Parties No.1&3.

                  Opposite Parties No.2, 4 & 5 not served, in view of statement given by Counsel for Opposite Parties No.1 & 3 on 21.11.2016.

 

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

 

 

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

               MR. DEV RAJ, MEMBER.

               MRS. PADMA PANDEY, MEMBER

 

PER MR. DEV RAJ, MEMBER

             The facts, in brief, are that the complainants, who were looking for a flat for themselves and their family members, requested the sales staff of Opposite Party No.1 to provide  flat on 5^th floor in Cassia Court. Accordingly, they were allotted Apartment No.004 at 5^th Floor, in Cassia Court A, 3B2TS Type having tentative super area of 1609 Sq. ft. together with 1 no. parking space at a total consideration of Rs.51,53,990.00 + service tax @Rs.3,203.33 per sq. ft.. Apartment Buyer’s Agreement dated 23.01.2012 was executed between the parties. It was further stated that as on date, the complainants have paid Rs.49,95,486/- to Opposite Party No.1 against the total sale consideration of Rs.51,53,990/-. As per Clause 12.3 of the Agreement, possession of the unit, in question, was to be handed over within 30 months from the date of the said Agreement i.e. by July 2014. It was further stated as per Clause No.19 of the said Agreement, time was essence in making payment of installments and as per Clause 12.4, the Company was liable to pay delay compensation @Rs.7.5 per sq. ft. per month in the event of delay in handing over possession, which came to be Rs.12,067.50 per month. It was further stated that the Opposite Parties were trying to justify the delay in offering possession under the garb of Clause 12.4, which is most inadequate and meaningless considering the fact that the complainants have paid Rs.50 Lacs approximately upon which, monthly interest @12% and 15% per annum comes to Rs.50,000/- and Rs.62,500/- per month and, therefore, Clause 12.4 does not safeguard the interest of the complainants. It was further stated that after having made more than 95% of payment, Opposite Party No.1 failed to offer/deliver possession of the apartment, in question till date. It was further stated that vide letter dated 30.12.2015, Opposite Party No.1 also informed that Larsen & Tubro Company had been withdrawn and some new construction company namely M/s Akalia Constructions was engaged. It was further stated that after engaging the new construction company, the development/construction work at the site has come to a standstill. It was further stated that the amenities/facilities, as promised in the Agreement, like multipurpose hall, swimming pool, gym, badminton and basket ball courts, kids play area and jogging track etc. have not even been started to be developed in the project.

2.          It was further stated that the complainants wrote various letters dated 27.01.2015, 01.07.2015, 01.10.2015 and 01.07.2016 but to no avail. The grievances expressed by the complainants in Para 13 of their complaint, related to unilateral change of contract from L&T to M/s Akalia Construction; delay in offering possession; not constructing drop road till the tower, in question; proposing to offer possession without completing the amenities; unilateral construction of approximately 70 flats by making flats over the existing towers and changing the tower from 6 stories to 8 stories thereby frustrating the choice and object of purchaser.

3.          It was stated that modular kitchen was promised but only cupboards in the lower portion of the modular kitchen have been provided and not in the upper portion. It was further stated that Split AC fittings were to be provided in all the rooms including bedroom but Opposite Party No.1 backed out from its commitment and is providing Split AC fitting only in the living room. It was further stated that the acts of Opposite Party No.1 amounted to deficiency, in rendering service and indulgence into unfair trade practice.

4.          Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of Opposite Party No.1, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to Opposite Party No.1 to hand over possession of the apartment, in question with all amenities as promised in the Agreement; pay interest @15% on the deposited amount; pay 10,00,000/- as compensation on account of harassment, mental agony etc.; provide electricity, water and sewerage from the Govt.; provide complete modular kitchen with lower and upper cupboards and also provide Split ACs provision in all the rooms besides Rs.50,000/- as litigation charges.

5.          Opposite Party No.1, in its written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.33 in the Apartment Buyer’s Agreement dated 23.01.2012; that since the present complaint related to enforcement of an agreement to sell/purchase of a residential apartment i.e. an immovable property and hence, was not covered under the Act; that the complainants did not hire any services of the Opposite Parties, as the parties did not enter into any contract for hiring the services; 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.  A specific objection was also taken that complainant No.1 is not competent and legally authorized attorney of complainant No.2 in asmuch as the alleged Special Power of Attorney (Annexure C-1) did not empower complainant No.1 with any authority to file the present complaint on behalf of complainant No.2.

6.          On merits, it was stated that the total sale consideration price agreed to be paid by the complainants was Rs.52,81,319/-. It was further stated that the complainants vide clause 2 of the application, agreed to pay the applicable registration amount and stamp duty, revised/enhanced EDC, Service Tax, GST or any other 3^rd party/statutory taxes, fees, charges etc. as may be applicable. It was further stated that the complainants were under contractual obligation to pay the consideration price of the apartment in advance and it was their sole prerogative to avail home loan, to which Opposite Party No.1 was not privy. It was further stated that charges towards EDC were already included in the aforesaid amount of Rs.52,81,319/-. It was further stated that Opposite Party No.1 is developing the site and constructing apartments as per the Agreement and applied for occupation certificate vide application dated 11.08.2016, which is likely to be issued by the competent authority very soon.

7.          It was further stated that apart from 30 months period in handing over possession of the apartment, Opposite Party No.1 was also entitled to 180 days grace period as was evident from letter dated 27.01.2015 (Annexure OP-6) and as, such, the period to offer possession was to travel beyond 30 months. It was further stated that the delay compensation amount was to be calculated @Rs.7.50 per sq. ft. of the super area and the same was to be adjusted or reduced from the last & final installment at the time of offer of possession. It was further stated that it was nowhere agreed that construction would be done by L&T or any other else company. It was further stated that L&T company had carried out majority of the development work but having found delay on the part of the said construction company, M/s Akalia Constructions (a sub-contractor of L&T) was appointed for finishing works of the Juniper Block & Firangipani Block only and not the Cassia Court Block where the complainants were allotted apartment. It was further stated that the complainants misrepresented the update letter dated 30.12.2015 sent by Opposite Party No.1. It was further stated that Opposite Party No.1 never proposed to offer possession of the apartment without completing the amenities. It was further stated that Opposite Party No.1 is in process of obtaining approvals for additional areas, as agreed under Clauses 9.10 and 21.3 of the Agreement.

8.          It was further stated that Opposite Party No.1 vide application dated 26.11.2013 applied for approval of electrical layout plan and grant of NOC to the PSPCL after submitting requisite details and PSPCL duly granted NOC dated 08.07.2015. It was further stated that the Chief Electrical Inspector to Govt. of Punjab approved the electrical installations laid in the project for commission of the same vide its NOC dated 07.08.2015. It was further stated that Opposite Party No.1 duly applied online vide RID No.15250 dated 27.08.2015 for the release of electric connection for the IREO Rise Project and PSPCL duly granted feasibility clearance dated 20.11.2015 for release of load/connection on the project. It was further stated that Opposite Party No.1 requested GMADA to comply with and deposit amount of Rs.37,19,763/- with PSPCL being already paid by Opposite Party No.1 as part of EDC to GMADA vide letter dated 29.3.2016 and also deposited Bank Guarantee dated 22.3.2015 for R.3,24,10,301/- plus Rs.2.97 Lacs towards Advance Consumption Deposit on 12.4.2016 in compliance to demand notice dated 28.12.2015. It was further stated that all formalities have been duly complied with and no dues remain to be paid or deposited on the part of Opposite Party No.1 towards energization of the electrical connection by PSPCL.

9.          It was further stated that Opposite Party No.1 has already constructed underground water tanks duly connected with the approved bore well, which have further been connected to the overhead tanks of each tower with pumping system to supply the water for domestic use. It was further stated that Opposite Party No.1 has already constructed and installed underground STP for the disposal of the sewage. It was further stated that it was nowhere agreed that modular kitchen comprising of both upper and lower portion would be provided. It was further stated that there was no agreement to provide Split AC fittings in all the rooms, rather on the contrary, said Agreement provides for provision for Split AC. It was further stated that Opposite Party No.1 has made provision for ACs in all the rooms. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

10.        On 21.09.2016, Sh. Ramnik Gupta, Advocate, who appeared for Opposite Party No.1 only, did not appear on behalf of Opposite Party No.2 - Managing Director of the Company, stating that since no post of Managing Director existed in the Company, therefore, there was no necessity to serve Opposite Party No.2 or file reply on its behalf.

11.        The complainants filed rejoinder, wherein they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Party No.1.

12.        The complainants, in support of their case, submitted affidavit of complainant No.1, who was also appointed his Special Power of Attorney by complainant No.2, by way of evidence, alongwith which, a number of documents were attached.

13.        Opposite Party no.1, in support of its case, submitted the affidavit of Sh. Rohit Tanwar, its Authorised Representative, by way of evidence, alongwith which, a number of documents were attached. 

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

15.        It is evident, on record, that the complainants were allotted Apartment No.004, Category General on Fifth Floor, Cassia Court A, 3B2TS Type in Group Housing Colony known as “Ireo Rise”, situated in Sector 99, SAS Nagar, Mohali having tentative super area of 1609 sq. ft. (149.47 sq. mtrs.) together with one parking space, forming indivisible part thereof and Apartment Buyer’s Agreement was executed between the complainants and Opposite Party No.1 on 23.01.2012 (Annexure C-2). The basic sale price of the unit was Rs.49,44,820/- besides External Development Charges (EDC) Rs.1,60,900/- and IFMS charges Rs.48,270/-. Thus, the total sale consideration of the unit, in question, including service tax was Rs.51,53,990/-. The payment against the aforesaid unit was to be regulated as per Payment Plan, Annexure IV (at Page 68 of the file). The complainants made payment in the sum of Rs.49,95,485.00 as is apparent from statement of accounts as on 09.09.2016 (Annexure C-3). In terms of Clause 13.3 of the Agreement, 30 months period for handing over possession, thus, expired on 22.07.2014. Admittedly, possession has not been offered/delivered to the complainants by Opposite Party No.1. Action of Opposite Party No.1 in raising construction/floors on the tower, where the apartment allotted to the complainants is situated, is as agreed under Clause 9.10 and 21.3 of the Agreement.

16.        The complainants have not stated as to how change of contract from L&T to M/s Akalia Constructions caused prejudice to them. Opposite Party No.1 has specifically stated that L&T had completed majority of development work and it was to avoid delay that Akalia Constructions (a Sub-contractor of L&T) was appointed for finishing works of Juniper Block & Firangipani Block and not the Cassia Court Block where complainants were allotted apartment. The objection of the complainants is, therefore, devoid of merit. Further during arguments, Counsel for the complainants did not press the issues relating to change of contract from L & T to M/s Akalia Constructions and provision for the electricity, water and sewerage, as contained in Paras 13(a) and 13(h) of the complaint.

17.        The objection of Opposite Party No.1 that complainant No.1 was not competent to file complaint on behalf of complainant No.2, in view of contents of Special Power of Attorney (Annexure C-1), is not sustainable and is liable to be rejected. In the Special Power of Attorney, it has specially been stated by complainant No.2 that he appoints, nominate and constitute complainant No.1 to do all the following acts, deeds and things in respect of consumer complaint filed before District Consumer Disputes Redressal Forum/Commission, Chandigarh pertaining to the booking of residential accommodation with IREO:-

1. To appear and act before any office/officer, court whether civil criminal or revenue or mis. To give all such applications, forms, statements, bonds, indemnity bonds etc., submit them in the office accordingly, to compromise and to withdraw all such cases, to refer to Arbitration to confess judgment, to engage any Advocate/Pleader for the proper conduct of such cases, to sign and verify all such plaints/suits/petitions, to file suit and to file appeals revisions with petitions against any order or decree upto the highest court of law in India, to apply for obtaining the copies of judicial stamps/records, to apply for and obtain the copies of all records and to receive refunds of any amount lying deposited in the Court, court fee and non-judicial samps under his own name and signatures.
2. To appear as a witness to file affidavit, to verify the plaint and to do all such acts which are necessary for fighting the above said case.
3. And generally to do all acts, deeds and things necessary for the proper adjudication of cases/s under his own signatures.”

 

18.        The afore-extracted contents of Special Power of Attorney reveal that complainant No.2 has fully authorized complainant No.1 to file the instant complaint and to do all acts/deeds as stated above. Therefore, in view of above, this objection of Opposite Party No.1 being devoid of any substance, stands rejected.

19.           It was argued by counsel for Opposite Party No.1 that in the face of existence of arbitration Clause No.33 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.”

20.        In view of the above, the objection raised by Counsel for Opposite Party No.1, being devoid of merit, is rejected.

21.        Another objection raised by Counsel for Opposite Party No.1 was that since the complainant did not buy goods and did not hire any services, and were 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 may be stated here, that the complainants hired the services of Opposite Party No.1, for purchasing the unit, in question, in the manner, referred to above. According to Clause 12.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Party No.1, it was to hand over possession of the apartment, in question, within a period of thirty months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment of the preconditions, whichever is later (commitment period).  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”

 

 

 

 

22.        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 complainants have remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall 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.

23.        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 complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from Clause 32 of the Agreement, that the parties had agreed that “Hence this Agreement shall be deemed to have been executed at Chandigarh even if the Proposed Allottee has prior thereto executed this Agreement at any place(s) other than Chandigarh”, meaning thereby that the Agreement in question, was deemed to be signed/executed at Chandigarh. Not only this, letters dated 30.12.2015 (Annexure C-5),  29.01.2015 (at Page 96 of the file) and 05.07.2016 (at Page 97 of the file) were sent by Opposite Party No.1 to the complainants, from its Chandigarh Office i.e. SCO 6-7-8, 1st & 2nd Floors, Sector 9-D, Chandigarh. Since, as per Clause 32 of the Agreement and the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.

24.        No doubt, in the written version, an objection was also taken by Opposite Party No.1, that as per Clause 35 of the Agreement, the Courts at Mohali and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainants, 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.

25.        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 complainants 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 them, to file the complaint. The submission of Counsel for Opposite Party No.1, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

26.        The next question, which falls for consideration, is, as to whether the construction of approximately 70 flats over the existing tower(s) by Opposite Party No.1 is at the cost of existing common facilities/amenities and against the agreed terms and conditions. Relevant clauses 21.3 and 9.10 in the Apartment Buyer’s Agreement read as under:-

“21.3      The Proposed Allottee agrees that the Company shall be entitled to connect the electric, water, sanitary and drainage fittings on any additional structures/storeyes with the existing electric, water, sanitary and drainage fittings. The Proposed Allottee further agrees and undertakes that it shall not at any time before or after taking possession of the said Apartment, have any right to object to the Company constructing or continuing with the construction of any other building(s)/ structures in IREO-RISE or putting up additional floors to any of the exiting towers/ Buildings in IREO-RISE or undertaking modification of any unsold apartment/units/ areas therein. The Proposed Allottee further agrees that it shall not claim any compensation or withhold the payment of maintenance and other charges, as and when demanded by the Company on the ground that the infrastructure required for IREO-RISE is not yet complete, or on any other ground whatsoever.

 

9.10 The Proposed Allottee hereby expressly agrees and consents that the Company shall have the absolute right to make additional construction, whether on account of increase in FAR or better utilization of the said Land or for any other reason anywhere in IREO-RISE, to the extent permissible by the government or the Competent Authority under the Act. The Company shall have the absolute and unfettered right to transfer such additional construction in any manner whatsoever as the Company may in its absolute discretion think fit. The Company and its transferees of such additional construction shall have the same rights as the Proposed Allottee with respect to IREO-RISE including the right to be member of the Society of Apartment Owners to be formed under the Apartment Act (“RWA”) and the right to use of the Common Areas and other common amenities of IREO-RISE.”

 

             In view of aforesaid, we are inclined to agree with Opposite Party No.1 that construction of additional flats is in accordance with the specific provision in the Apartment Buyer’s Agreement. The objection of the complainants is, therefore, not tenable. Opposite Party No.1 is well within its rights to raise construction of additional flats in terms of provisions in the agreement.

27.        The next question, which falls for consideration, is, as to whether Opposite Party No.1, by not providing Split AC fittings and complete modular kitchen, was deficient in rendering service. As per Annexure I, Opposite Party No.1 was to make provision for Split AC and modular kitchen. The provision and specifications, so mentioned in Annexure-I appended to the Agreement, at Pages 127 and 128 of the file, qua the aforesaid two facilities, are extracted hereunder:-

 

KITCHEN	MODULAR KITCHEN	Fitted modular Kitchen, SS Sink, CP fittings, provision for RO system, built-in hob/chimney.
	COUNTERTOP	Granite
AIR CONDITIONING		Provision for Split AC in all bedrooms, drawing & dining room.

 

Admittedly, the provision in accordance with the specifications in the Apartment Buyer’s Agreement was not made. It was argued on behalf of Opposite Party No.1 that it was nowhere agreed that modular kitchen comprising of both upper and lower cabinets/cupboards was to be provided, and that it was nowhere mentioned that portion above the working slab is a must for a modular kitchen. Opposite Party No.1 cannot draw their own conclusion that modular kitchen would be complete, even if the cup-boards are provided only below the slab. Had it been so mentioned in the specifications, the position would have been different. When it is clearly mentioned that modular kitchen is to be provided, it would mean modular kitchen with cup-boards below and above the slab. Opposite Party No.1 has also failed to clarify, why the provision of Split AC was not made. Thus, Opposite Party No.1 is liable to provide modular kitchen with cup-boards upper the slab also and so also the provision for split AC fittings in the bedrooms and drawing & dining room.

28.        The next question, which falls for consideration, is, whether the alleged unilateral act of non-constructing of the drop road is an act of deficiency on the part of Opposite Party No.1. It (Opposite Party No.1), in its written statement has categorically denied the allegation of non-construction of the drop road, in question. It has been submitted that all internal roads including the alleged road would be fully developed as per approved plan. In view of specific averment of Opposite Party No.1, we do not find any deficiency on this account at this stage.

29.        The next question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainants and whether the complainants are entitled to delivery of possession of the apartment. As stated above, according to Clause 12.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Party No.1, it was liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment  of   the   preconditions   whichever   is   later (commitment period). The building plans were approved on 18.01.2012 as is evident from Annexure OP-7 but Buyer’s Agreement was executed on 23.01.2012. Computing 30 months from 23.01.2012, commitment period for handing over possession was up-to 22.07.2014. On account of force majeure circumstances, referred to in the Agreement, Opposite Party No.1 was entitled to advantage of 180 days grace period after the expiry of commitment period, for unforeseen delays in obtaining the Occupation Certificate etc. from the Competent Authority. In the instant case, Opposite Party No.1 applied for the Occupation Certificate vide application dated 11.08.2016 (Annexure OP-5) i.e. after expiry of 180 days grace period and the same is still awaited. It was argued by counsel for Opposite Party No.1 that it was entitled to 180 days grace period as the complainants by writing letter dated 27.01.2015 (Annexure OP-6) to Opposite Party No.1 themselves admitted so. It may be stated here that in response to complainants’ letter dated 27.01.2015, Opposite Party No.1 vide its letter dated 29.01.2015 (Annexure C-6 colly., at Page 96), in Para 2, stated as under:-

“In terms of the Apartment Buyer’s Agreement dated 23-Jan-2012, the Company proposes to offer you possession of the apartment within 30 months from the date of execution of the Agreement or approval of the building plans and/or fulfillment of the pre-conditions imposed thereunder, whichever is later. We are targeting to offer the possession by the end of second quarter of 2015 subject to receipt of the occupation certificate.”

 

When Opposite Party No.1 in its letter admitted that possession was to be offered within 30 months, in absence of any cogent evidence or justification to seek extension of 180 days by Opposite Party No.1, it was not entitled to advantage of 180 days grace period. Further, advantage of 180 days grace period would have been admissible to Opposite Party No.1, had it applied for the occupation certificate during the aforesaid period of 180 days. As stated above, occupation certificate was applied on 11.08.2016, which is still awaited. It is an admitted fact that possession of the unit, in question, has not been offered to the complainants, even either expiry of 180 days or after expiry of extended delay period of 12 months, or by the date of filing the instant complaint, or even till date, for want of basic amenities at the site despite the fact that 95% of the sale consideration i.e. Rs.49,95,485/-, has been paid by the complainants. It is on record that Opposite Party No.1 vide letter dated 29.01.2015 (at Page 96 of the file) admitted that they would be targeting to offer the possession by the end of second quarter of 2015 subject to receipt of occupation certificate. When Opposite Party No.1 failed to fulfil its commitment, it subsequently, vide letter dated 05.07.2016 (at Page 97 of the file) stated as under:-

“….We are cognizant to the fact that it has taken us much more than anticipated. However, delaying a project is never a favorable situation for a developer and we would like to assure you that every effort is being made to ensure that your apartment is handed over to you soon…”

 

Opposite Party No.1 has also failed to place, on record, any cogent and convincing evidence, that  construction of the unit is going to be complete in the near future and also that development in area is in progress. Opposite Party No.1 was, therefore, duty bound to hand over possession within 30 months i.e. by 22.07.2014. Admittedly, Opposite Party No.1 has not yet received the occupation certificate. No doubt in letter dated 05.07.2016, Opposite Party No.1 had stated that it would be offering possession soon, the fact remains that possession has still not been offered. The Counsel for Opposite Party No.1 could not give any firm date, by which Opposite Party No.1 would be handing over possession. Clearly there is delay in delivering possession. By making a misleading  statement, that possession of the unit, was to be delivered within the period as discussed above, and by not abiding by the commitment made despite payment of around 95% payment by the complainants, it (Opposite Party No.1) was not only deficient, in rendering service, but also indulged into unfair trade practice. The complainants are certainly entitled to physical possession of the unit, in question.

 

30.             The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for delay in delivering physical possession of the unit beyond the time stipulated in the Agreement. It may be stated here that in case titled Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

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

9.      xxxxxxxxxxxxx

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

(1)         xxxxxxxxxxxxxx

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

(3)   No separate compensation would be payable to the complainants either towards the rent if any paid by them or for the mental agony and harassment which they have suffered on account of the failure of the opposite party to perform its contractual obligation.”

31.        No doubt in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainant for delay, but it does not mean that even in the event of inordinate delay, that too without justified reasons, in completing the construction and delivering the possession, the complainants would be entitled to meagre compensation of Rs.7.50 per sq. ft. of super area, which is much less than the bank rate for loan or fixed deposit. If the argument of Opposite Party No.1 is to be accepted, it would lead to an absurd situation and would give an unfair advantage to the unscrupulous builder, who might utilize the consideration amount meant to finance the project, by the buyer, for its other business venture, at nominal interest of 3 to 4 per cent, as against much higher bank lending rates. This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act.

32.        Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the case, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 23.07.2014, till delivery of possession of the unit, would meet the ends of justice.

33.             The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them, by not delivering physical possession of the unit to them, by Opposite Party No.1, by the promised date in the Agreement i.e. by 22.07.2014. The complainants purchased the unit, with the hope to have a roof over their head alongwith family members  but their hopes were dashed to the ground. Even the possession of unit, in question, has not been offered to the complainants, till date by Opposite Party No.1, what to speak of delivery thereof. The complainants underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of Opposite Party No.1. The compensation in the sum of Rs.10 Lacs claimed by the complainants is clearly on the higher side. Opposite Party No.1 has specifically stated that possession of the apartment will be handed over to the complainants on the old rates when booking was made. The complainants, in our considered opinion, have been adequately compensated by granting interest @12% per annum on the deposited amount for the delay period. In addition, they (complainants) will also get the benefit of escalation in the price of unit, in question. In these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainants, if granted, to the tune of Rs.1,50,000/-, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

34.        In the connected Consumer Complaint No.641 of 2016 titled ‘Sh. Shamsheer Tandon & Anr. Vs. M/s Puma Realtors Private Limited & Ors.’, relating to the same project i.e.IREO Rise, the complainants have sought refund of the deposited amount i.e. Rs.56,53,503/- alongwith interest @24% per annum besides Rs.5 Lacs as compensation for harassment, mental tension, loss of precious time & money, unfair trade practice and deficiency in service; Rs.3 Lacs on account of escalation, and Rs.50,000/- as litigation charges. Besides other preliminary objections, as raised in Consumer Complaint No.602 of 2016, Opposite Parties No.1 & 3 have raised an objection that the complainants are not consumers as they purchased the unit, in question, for investment purposes. It may be stated here that the complainants, in Para 1 of their complaint, have categorically stated that they applied for allotment of the flat, in question, for their residence purposes. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Parties No.1 & 3, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Commission that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316. 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 had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

 

Therefore, in view of law settled by the National Commission in the aforesaid cases, the complainants fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 & 3, in their written reply, therefore, being devoid of merit, is rejected.  

35.        The core question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainants and whether the complainants are entitled to seek refund of the amount deposited by them alongwith interest. It may be stated here that as per Clause 13.3 of the Apartment Buyer’s Agreement dated 27.05.2011 (Annexure OP-2), subject to force majeure conditions and reasons, beyond the control of Opposite Parties No.1 & 3, they were liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment of the preconditions imposed thereunder whichever was later. As is evident from Annexure OP-21, the building plans were approved on 18.01.2012 after 27.05.2011 when agreement was executed; 30 months period for delivering possession expired on 17.07.2014. On account of force majeure circumstances, referred to above, Opposite Parties No.1 & 3 were entitled to advantage of 180 days grace period after expiry of 30 months. No cogent evidence or justification for seeking advantage of 180 days grace period has been placed on record by Opposite Parties No.1 & 3. The complainants, in Para 3 of their complaint, have stated that they were assured by Opposite Parties No.1 & 3 that possession shall be provided within a period of 30 months from the date of agreement with a grace period of 180 days. The fact remains that even after expiry of grace period of 180 days, Opposite Parties No.1 & 3 failed to offer/deliver possession of the unit, in question, to the complainants. Clause 13.4 of the Agreement envisages that in case of delay beyond the period as referred to above, in handing over possession, Opposite Parties No.1 & 3 shall be under obligation to pay penalty amount for the delayed period. Computing 30 months from the date of approval of building plans, on 18.01.2012, at the maximum, possession was to be delivered to the complainants by 17.07.2014 or latest by 17.01.2015. Even if, it is accepted that Opposite Parties No.1 & 3 are entitled to further 12 months of extended delay period, as per Clause 13.5 of the Agreement, date of handing over possession come to an end on 17.01.2016. It is an admitted fact that possession of the unit, in question, has not been offered, by the date of filing the instant complaint, or even till date, for want of completion of unit and basic amenities at the site despite the fact that the complainants had already paid an amount of Rs.56,53,503/- as against the sale consideration of Rs.57,97,780/-. The complainants have also placed on record an email dated 03.02.2016 (Annexure C-30), whereby Opposite Parties No.1 & 3 informed that “…..every effort is being made to ensure that the project is completed and handed over to you soon.”

36.        Opposite Parties No.1 & 3 failed to abide by its commitment to offer possession of the unit, in question, as per Agreement and as committed in Annexure C-30. The complainants cannot be made to wait indefinitely.   No doubt, Opposite Parties No.1 & 3 have admitted,            in its written statement, that it is in the process of obtaining the occupation certificate and possession, complete in all respects, of the apartment, in question, shall be handed over in the near future, yet, it failed           to place, on record, any cogent and convincing evidence, with regard to date, by which, construction of the unit    is going to be complete. Opposite Parties No.1 & 3 were duty bound to hand over possession within 30 months   i.e. by 17.07.2014 or at the maximum by 17.01.2015   after grace period of 180 days. Counsel for Opposite      Parties No.1 & 3 could not give any firm date, by which Opposite Parties No.1 & 3 would be handing over possession. Clearly there is delay in delivering possession. By making a misleading   statement, that possession of the unit, was to be delivered within the maximum period of 30 months from the date of execution of the Agreement/approval of building plans and within further extended period of 180 days and thereafter during the extended delay period of 12 months, and by not abiding by the commitment made, they (Opposite Parties No.1 & 3) were not only deficient, in rendering service, but also indulged into unfair trade practice. Non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement, on the part of Opposite Parties No.1 & 3. This Commission in case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, relying upon the judgments rendered by the Hon’ble National Commission, ordered refund to the complainant while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the  complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the  complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), 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. Recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015 decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder while holding as under:-

“I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and, therefore, is entitled to refund the entire amount paid by him alongwith reasonable compensation, in the form of interest.”

 

             In view of the above, it is held that since there was a material violation on the part of Opposite Parties No.1 & 3, in not handing over possession of the unit by the stipulated date or even till date, the complainants are entitled to refund of the amount deposited, alongwith interest and compensation by way of filing the instant complaint.

37.          It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.56,53,503/-  was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by Opposite Parties No.1 & 3, for their own benefit. Opposite Parties No.1 and 3 were charging heavy rate of interest @15% per annum, with quarterly rests, as per Clause 7.3 of the Agreement, for the period of delay in making payment of installments by the complainants.  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 (2014) 6 SCC 335). In view of above, the complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest @12% compounded quarterly (less than the rate of interest charged by Opposite Parties No.1 and 3).

38.        The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to her. Clearly possession of the unit, in question, has not been offered to the complainants till date on account of which, they (complainants) suffered mental agony and physical harassment. The compensation in the sum of Rs.5 Lacs claimed by the complainants is certainly on the higher side. The complainants have been in default in remitting various installments as indicated by Opposite Parties No.1 & 3 in Table in Para 22, at Page 30 of their written statement. The same is extracted hereunder:-

 

Description of Installment	Payable amount of Installment (Rs.)	Date of Demand note/due date	Details of Reminders & Final Notice	Details of Payment/ Payment received Date	No. of days of delay.
Installment due within 3 months of booking (3rd installment)	7,41,691/-	07.06.2011/04.07.2011	08.07.2011/ 23.07.2011	Part payment on 05/08/2011 and balance on 12.09.2011	32 Days   70 Days
Installment due on completion of excavation (4th Installment)	6,15,834.41	17.02.2012/15.03.2012	19.03.2012/ 03.04.2012/ 14.06.2012	Part Payment on 07/05/2012 followed by on 12/06/2012, 29/06/2012	53 Days 89 Days 107 Days
Installment due on completion of basement roof slab. (5th Installment)	6,18,555.27	14.11.2012/ 11.12.2012	15.12.2012	03/01/2013	23 Days
Installment due within six months of completion of third floor roof. (8th Installment)	6,30,735.44	13.09.2013/ 10.10.2013	14.10.2013	Part payment on 18.10.2013 Balance demanded in next Demand Note.	8 Days
Installment due within nine months of completion of third floor roof. (9th Installment)	6,30,735.44 + 6,186.12 (Arrears) = 6,24,549.31	23.12.2013/ 19.01.2014	23.01.2014	27.01.2014 & 20.03.2014	8 Days   60 Days
Installment due within 12 months of completion of third floor roof. (10th Installment)	6,30,735.77	22.03.2014/ 18.04.2014	-	21.04.2016	28 Days
			Total no. of days of delay		371 Days

 

39.        In view of facts and circumstances of the case, especially delay in remitting the installments, the complainants are not entitled to same compensation for mental agony, physical harassment and deficiency in rendering service, as this Commission, in other such cases pertaining to this project, has been granting. Compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.2 lacs (Rupees Two Lacs only), if granted, would be adequate to serve the ends of justice.

 

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

41.         For the reasons, recorded above, both the complaints bearing Nos.602 of 2016 and 641 of 2016 are partly accepted with costs.

Complaint Case No.602 of 2016 titled ‘Jogendra Pal Singh & Anr. Vs. Puma Realtors Pvt. Ltd. & Anr.’

 

             Opposite Party No.1 is, held liable and directed as under:-

1. To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, including modular kitchen with cupboards above the slab also and provision for Split AC (fittings) in all bedrooms, drawing & dining room, to the complainants, within a period of four months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against them.
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc. by the complainants.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 23.07.2014 to 31.01.2017, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainant s w.e.f. 01.02.2017, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1,50,000/- (Rupees One Lac and Fifty Thousand only) on account of mental agony and physical harassment, caused to the complainants, and Rs.35,000/- as cost of litigation, to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

Complaint Case No.641 of 2016 titled ‘Sh. Shamsheer Tandon & Anr. Vs. M/s Puma Realtors Pvt. Ltd. & Ors.’

 

             Opposite Parties No.1 & 3 are, jointly and severally, held liable and directed as under:-

(i)    To refund the amount of of Rs.56,53,503/- to   the   complainants, alongwith interest @12% compounded quarterly, from the respective dates of deposits, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)   To pay an amount of Rs.2,00,000/- (Rupees Two Lacs only), as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainants, 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 Opposite Parties No.1 & 3, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% compounded quarterly, from the date of default, till realization and amount(s) mentioned in Clause (ii) above, with interest @12% p.a. (simple) from the date of filing the complaint till realization.

             However, it is made clear that in case, the complainants have 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 complainants.

42.        In view of statement given by Sh. Ramnik Gupta, Advocate, Counsel for Opposite Party No.1 (in CC/602/2016) and Opposite Parties No.1 & 3 (in CC/641/2016, both the complaints stand dismissed against Opposite Party No.2 (in CC/602/2016) and Opposite Parties No.2, 4 & 5 (in CC/641/2016), respectively, having been rendered infructuous.

43.        Certified Copies of this order be placed in the file of complaint bearing Nos.641 of 2016.

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

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

Pronounced.

02.02.2017.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

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