Chandigarh

StateCommission

CC/555/2016

Mrs. Asha Vij - Complainant(s)

Versus

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

Parveen Moudgil, Adv.

12 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	555 of 2016
Date of Institution	:	07.09.2016
Date of Decision	:	12.01.2017

 

Mrs. Asha Viz w/o Mr. Chand Parkash Vij R/o House No.129-R, Model Town and presently residing at House No.89, Late No.-2, Friends Colony, near Wdala Chowk, Jalandhar (Punjab).

 

……Complainant.

Versus

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st & 2^nd Floor, Sector 9D, Chandigarh – 160009.
2. Sh. Ajay Kumar Kurichh, Authorised Signatory, Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st & 2^nd Floor, Sector 9D, Chandigarh – 160009.

….Opposite Parties.

 

 

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

 

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

                SH. 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 DEV RAJ, MEMBER

               The facts, in brief, are that on the assurance given by the Opposite Parties through various newspapers and advertisements that the development activity at the site of their project namely ‘IREO HamLET’, in Sector 98, SAS Nagar, Mohali, was in full swing and possession of the plot would be handed over within a maximum period of 30 months from the date of execution of the Plot Buyer’s Agreement, the complainant applied for allotment of a residential plot measuring 307.77 Sq. Yards in the said project and paid a sum of Rs.77,49,695/-, in all, uptill the date of the filing of the instant complaint, as per payment details (Annexure C-1). Plot Buyer’s Agreement (Annexure C-2) was executed between the parties on 21.11.2011, as per which, the basic sale price of the plot, in question, was Rs.76,94,250/- excluding External Development Charges (EDC) and Interest Free Maintenance Security (IFMS). As per the Payment Plan, 95% of the total sale consideration was to be paid within 18 months from the date of booking and the remaining 5% was to be paid on delivery of possession.

2.            It was further stated that on visiting the site, the complainant was shocked to see that there was no development and the same was the position in the year 2013 as there was still no development. It was further stated that even the roads dividing between Sectors 86-87 and approach road dividing sectors 97-98 to reach the site were not there. It was further stated that the Opposite Parties verbally intimated that they were making all efforts to closely follow-up the complete development work of roads with the government and the contractor had begun mobilization at site. It was further stated that the colony/project severely lacks basic amenities and facilities, in as much as there is no boundary wall, no overhead tanks or water linkages to the project, no club house building, green belt is yet to be developed and there is no arrangement for water supply, sewerage, electricity etc.

3.            It was further stated that the complainant requested the Opposite Parties to provide necessary approvals/permissions, regarding basic amenities/PHE services but they did not bother to reply. It was further stated that the complainant was, thus, not only deprived of the use of her hard earned money for long time but also suffered a lot of mental agony, physical harassment and financial loss in the absence of delivery of plot. It was further stated that notice of possession dated 12.05.2015 was issued to the complainant in a hurried manner without completing development and basic amenities at the site. It was further stated that the project severely lacks basic amenities at the site and is not fit for habitation, as per information obtained under RTI from various authorities (Annexures C-6 to C-11). Some of the deficiencies pointed out are non-provision of electricity connection, non-sanction of regular permanent electricity load for residential purpose, no arrangement for water supply, overhead tanks, non-provision of sewerage and storm water drainage lines in sector-dividing roads in new sectors which are being developed. The complainant, referring to Clause 20.1 of the Plot Buyer’s Agreement has stated that she was entitled to receive refund of the installments alongwith interest at the rate of 7.5% per annum. It was further stated that the complainant sent legal notice dated 20.06.2016 (Annexure C-12) for termination of the Agreement and demand of amount, but to no avail. It was further stated that the acts of the Opposite Parties 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 the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) claiming refund of Rs.77,49,695/- alongwith interest @18% per annum from the actual date of deposit, Rs.10,00,000/- as compensation on account of mental agony & physical harassment and Rs.50,000/- as cost of litigation.

5.          The Opposite Parties, in their joint written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.33 in the Plot Buyer’s Agreement dated 21.11.2011; that present complaint related to the enforcement of agreement to sell/purchase of a residential plot i.e. an immoveable property and hence was not covered under the Act; that the complainant did not hire any services of the Opposite Parties, as the parties did not enter into any contract for hiring the services; that the complainant did not book the plot for her personal use but for investment/commercial purpose and that the allegations in the complaint being of contractual nature, were only triable by the Civil Court. Apart from above objections, a specific objection with regard to the territorial jurisdiction of the Commission on account of existence of Clause 35 in the Agreement has been raised stating that the Courts at Mohali and the Punjab & Haryana High Court at Chandigarh alone had the jurisdiction.

6.          On merits, while admitting the factual matrix of the case, the Opposite Parties stated that the complainant wilfully defaulted in making timely payments as she had not adhered to the payment schedule. It was further stated that the complainant blatantly violated Clause 19.1 of the Agreement with impunity. It was denied that the complainant was ever given any assurance that construction at the site was in full swing and possession would be given in 30 months from the date of execution of the Agreement. It was stated that as per agreement, a sum of Rs.1275.10 per sq. yard towards EDC and Rs.350/- per sq. yard on account of IFMS were to be paid by the allottee towards the sale consideration price of the plot measuring 307.77 sq., yards, in question, and the total consideration price agreed to be paid by the complainant was Rs.81,94,407.02. It was admitted that the development of the site commenced on 01/05/2013 and after due development of the site, Opposite Party No.1 started offering possession of the plots w.e.f. May 2015. It was denied that after 2013, there was no development at site. It was further stated that development work, as per Clause 21.2 of the Agreement, was duly carried out within the periphery of the project to the extent mentioned in the said clause and external development works were to be executed by the State Authorities, for which, Opposite Party No.1 had deposited the requisite EDC charges with the said authorities. It was further stated that Opposite Party No.1 was to carry out internal development works only and development of the sector roads/access roads was to be provided by the State Government. 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 complainants.

7.          It was further stated that Opposite Party No.1 has been granted exemption from all the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short ‘PAPRA 1995’) by the competent authorities vide notification dated 14.08.2008 and it was/is not under any obligation to obtain the completion certificate under PAPRA 1995. It was further stated that Opposite Party No.1 had obtained all the necessary approvals and permissions from the competent authorities. 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; revised layout plans were approved on 15.05.2013; NOC by PSPCL was granted on 08.07.2015; approval for commissioning of electrical installation was accorded on 07.08.2015; consent to operate was granted by Punjab Pollution Control Board on 05.01.2016 and Bank Guarantee was submitted to PSPCL on 22.03.2016. It was further stated that the possession was to be offered within 42 months from the date of execution of the Agreement and the said 42 months period expired on 20.05.2015, whereas the notice of possession of the developed plot was offered on 12.05.2015. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.   (In the written statement, Opposite Party No.1 has specifically stated that Opposite Party No.2 is its authorized signatory, who had merely executed the Plot Buyers Agreement dated 22.11.2011 on behalf of Opposite Party No.1. It was further stated that Opposite Party No.2 is not personally responsible for the acts of Opposite Party No.1 and he has wrongly been arrayed as party in the complaint).

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

9.         The complainant filed rejoinder, wherein she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.

10.        The Opposite Parties, in support of their case, submitted the affidavit of Shri 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.272 in the residential project “IREO Hamlet” admeasuring 307.77 sq. yard, Sector 98, SAS Nagar, Mohali, was allotted to the complainant, Basic Sale Price whereof was Rs.25,000/- 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 Opposite Party No.1 on 21.11.2011 (Annexure C-2) at Chandigarh. The payment against the aforesaid plot was to be regulated as per payment plan, Annexure I (at Page 55 of the file). Against the total price of the plot including External Development Charges and IFMS Charges, the complainant made payment in the sum of Rs.77,49,695.50. 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 21.11.2011. The possession was offered on 12.05.2015 and the present complaint was filed on 07.09.2016 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. The complainant has also specifically averred on the basis of documentary evidence/RTI information that since neither development was complete nor the basic amenities such as permanent electricity, roads, sewerage, drainage and storm water were provided, she served legal notice dated 20.06.2016 for termination of the Plot Buyer’s Agreement and sought refund of the deposited amount.

13.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has 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 Opposite Party No.1 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.

14.        To defeat claim of the complainant, the next objection raised by Opposite Party No.1 was that since the complainant had purchased the plot, in question, for investment/commercial purpose i.e. for resale, as and when there was escalation in the prices of real estate, as such, she would not fall within the definition of consumer, as defined by Section 2(1)(d)(ii) of 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 Opposite Party No.1, 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 plot, 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 Opposite Party No.1, in written reply, therefore, being devoid of merit, is rejected.  

15.        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 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 may be stated here, that the complainant hired the services of Opposite Party No.1, 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 Opposite Party No.1, it was 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 her, as she falls within the definition of consumer, as stated above. In this view of the matter, the objection of Opposite Party No.1, in this regard, being devoid of merit, must fail, and the same stands rejected.

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, it is evident from the record, that booking of the plot, in question, was made by the complainant at Chandigarh vide application (Annexure C-3), addressed to Opposite Party No.2 at SCO No.6, 7, 8, First and Second Floor, Sector – 9-D, Chandigarh. Further the Plot Buyer’s Agreement dated 21.11.2011 was executed between the parties at Chandigarh. Not only this, offer of possession letter dated 12.05.2015 (Annexure OP-3) was issued to the complainant from the Chandigarh office of the Company as the same bore the address of Opposite Party No.2 as “SCO 6-8, First and Second Floors, Sector 9-D, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by Opposite Party No.1, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

18.          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 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 the complainant, 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.

20.        During the course of arguments, an objection was raised by the Counsel for Opposite Party No.1 that since the complainant has sought compensation in the sum of Rs.10 Lacs besides interest @18% p.a. on the deposited amount, the consideration of the plot, in question, being Rs.81,94,704/-, the value of the plot plus reliefs claimed shall exceed Rs.1 Crore and, hence, beyond pecuniary jurisdiction of this Commission. It may be stated here, to clarify the position, that a similar question fell for determination before this Commission in Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. & Anr., Complaint Case No.484 of 2016, decided by this Commission on 15.12.2016, wherein while negating the said plea, it was held as under:-

“13.        Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and  in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

14.        In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

15.       It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

                As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

                In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 “12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

 (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

 (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

 (3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

 (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

16.         In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.’s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

             In view of above, this objection taken by Opposite Party No.1 that this Commission lacks pecuniary jurisdiction, being devoid of merit, fails and the same stands rejected.

21.        The next question, which falls for consideration, is, as to whether the development and the basic amenities were complete at the site before offering possession vide letter dated 12.05.2015 or not and whether the complainant is entitled to refund. The complainant has specifically challenged the offer of possession by way of filing the instant complaint for not obtaining approvals from the Competent Authorities by Opposite Party No.1 and lack of development and basic amenities such as roads, sector road connection to project, overhead tanks, water linkage to the project, non-construction of club house, water supply, sewerage at the site. The Counsel for the complainant submitted that possession of the plot, in question, vide letter dated 12.05.2015 was not complete,                               valid and legal possession and the same was offered by Opposite Party No.1 to cover up its deficiency and delay in offering the possession.    

22.       When we look into inter se communication between the parties, it becomes apparently clear that there was a promise to make development and then hand over possession of the plot, to the complainant. From letter dated 29.06.2015 of Opposite Party No.1 (Annexure C-5), which was issued after offer of possession, Opposite Party No.1 admitted that the following amenities were yet to be completed:-

• Internal roads not complete as it could be damaged on account of movement of trucks carrying heavy construction material.
• In process of completing the balance blacktopping work also.
• The work of roads would be taken up after considerable number of houses are constructed by the allottees.
• Only temporary electricity connection would be made available for construction.
• External roads, networks and infrastructure are the responsibility of Government and the opposite parties are following up with the Government to do so.
• Sewerage treatment plant has not been constructed and will be taken when there is adequate habitation.
• For construction purpose water can be purchased from any authorised vendor permitted by Panchayat, Irrigation department, GMADA etc. 

Thus, the averment of the complainant that the basic amenities like roads and sewerage were not complete/developed at the site, stands corroborated from the contents of aforesaid letter. Subsequently, the complainant served legal notice dated 20.06.2016 (Annexure C-12) upon Opposite Party No.1, for termination of the Agreement and refund was sought alongwith interest. Thereafter, the complainant filed the instant complaint on 07.09.2016 pointing out deficiency on the part of Opposite Party No.1 and unfair trade practice, seeking refund of Rs.77,49,695/- alongwith interest @18% p.a. interest. The position stated hereinafter also clearly reveals that development/ amenities were not complete when possession of the plot, in question, vide letter dated 12.05.2015 was offered by Opposite Party No.1.

23.       In Memo No.5001 dated 7.8.2015 (Annexure OP-19), which is letter from the Chief Electrical Inspector to Govt. Punjab, Patiala, to M/s IREO Hamlet A(Residential Township Sector 98, Mohali, it is stated that inspection of subject cited electrical installation was carried out by the Electrical Inspectorate and the same was found to be conforming to the relevant provisions of Central Electricity Authority (Measure relating to safety and Electric Supply) Regulations, 2010 and the  installations  were  approved  for commissioning but clearly, this approval was accorded after offer of possession vide letter dated 12.05.2015.

24.       Even the final NOC to Opposite Party No.1 for 85.25 Acres residential township in Sectors 86, 98 and 99 in Village Sambhalkhi, SAS Nagar, Mohali was accorded by Punjab State Power Corporation Limited on 8.7.2015 (Annexure OP-18), after offer of possession on 12.05.2015. In letter dated 18.05.2015 (Annexure OP-17) addressed to Opposite Party No.1 by Greater Mohali Area Development Authority (GMADA), w.r.t letter dated 16.04.2015, whereby service plans for Mega Housing Project were submitted, it (GMADA) clearly informed Opposite Party No.1 that arrangements for suitable provision for drinking water supply and safe disposal of sullage/storm discharge and solid waste management shall be made by Opposite Party No.1 at their level separately and they shall obtain all necessary approvals from the concerned Authorities as per law in this regard independently. It was further stipulated that the construction work was to commence only after obtaining approvals as per law from the concerned Authorities. As per aforesaid letter, numbers of conditions were required to be complied with by Opposite Party No.1. Nothing has been placed on record to the effect that Opposite Party No.1 complied with those conditions. Further, consent to operate an outlet for discharge of the effluent u/s 25/26 of Water (Prevention & Control of Pollution) Act, 1974 was granted to Opposite Party No.1 vide letter dated 05.01.2016 (Annexure OP-20) i.e. after offer of possession. It may also be stated here that the Opposite Parties furnished Bank Guarantee dated 22.03.2016 (Annexure OP-21) with expiry date/claim expiry date as 21.03.2021 in the sum of Rs.3,24,10,301/- to the PSPCL, after offer of possession. As such, Opposite Party No.1 had neither completed the development nor did it has all the necessary sanctions/approvals from the Competent Authorities up-till 12.05.2015 when offer of possession was made. The contention of the complainant that possession offered was not a valid and proper possession is, thus, corroborated from the evidence on record.  The averment of Opposite Party No.1 in its written statement that execution of sale deeds with 53 allottees proves development, is of no significance when the position stated above clearly establishes that development/ amenities were not complete. It is, therefore, held that Opposite Party No.1 was not only deficient, in rendering service but also indulged into unfair trade practice, by offering a paper possession to the complainant, before completing the development as also without obtaining the necessary approvals. In similar circumstances, this Commission in Sarbjit Singh Vs. Puma Realtors Pvt. Ltd.’s case (supra), pertaining to this project, held in Paras 23 and 24 as under:-

“23.        Besides as above, it is very significant to mention here that in First Appeal No.704 of 2016 titled as Puma Realtors Pvt. Ltd. Vs. Ashok Kumar and another, filed by the Builder/opposite party, against the order dated 26.04.2016 passed by this Commission, in Consumer Complaint No.15 of 2016, which relates to a similar project, wherein also offer of possession was made to the complainant on 23.11.2015, the National Commission, when deciding an application of the opposite party to get interim stay, has held the same as paper possession,  by observing as under:-

“As regards the question of balance of convenience and equities between the parties, based on the merits of the Appeal, we feel that, for the present, it would suffice to extract the findings of the State Commission in Consumer Complaint no. 309/2015 by which order the Complaint No.15/2016 was also disposed of. The findings which succinctly reflecting the ground realities are as under:- 

 ““Even the final NOC to the Opposite Party No. 1 for 85.25 Acres residential township in Sectors 86, 98 and 99 in Village Sambhalkhi, SAS Nagar, Mohali was accorded by Punjab State Power Corporation Ltd. on 8.7.2015 (Annexure OP 14), after offer of possession on 04.5.2015.  Further from perusal of information obtained under RTI dated 03.7.2015, Annexure C-7 by one Sh. P. Saini(at Page 79 of the file), it is established that the Promoter was to complete the development work of the Project before offering possession of the plot and as per the notification issued by the Government bearing No. 4966 dated 02.09.2014,  the letters had been issued to all the Promoters of MEGA Projects  for getting completion certificates of their MEGA Projects. Further as per information obtained under RTI Act, 2005 by the said Paramjit Singh Saini, dated 15.06.2015 (at page 92 of the file) vertical road sector dividing 97-88 and road dividing sector 86-98 are yet to be constructed and this would be done only after acquisition of the land. Further as per RTI information dated 30.06.2015 (at page 95 of the file) sewerage and storm water drainage are constructed/laid down by GMADA on Sector dividing road in the new sectors being established. Further, Opposite party No.1 has itself, placed on record copy of application dated 29.06.2015 (Annexure OP -30), which clearly shows that it (Opposite Party No.1) applied for partial completion certificate for Sectors 86,98 and 99, SAS Mohali only on 29.06.2015 that too after offer of possession of the plot, in question to the complainant on 04.05.2015. Opposite Party No. 1 has averred that it was exempted under PAPRA, except provision of Section 32 thereof, vide notification dated 14.08.2008 and was not required to obtain completion certificate and it applied for partial completion certificate only for the benefit of the complainant. It may be stated here that as per Govt. Notification No.4966 dated 02.09.2014, all the promoters of Mega Projects were required to get a completion certificate. In the instant case, possession was offered on 04.05.2015 but Opposite party No. 1 applied for partial completion certificate on 29.06.2015. It is, thus, abundantly clear from the evidence on record that neither amenities were complete nor approvals obtained, when possession was offered.”

It is manifest that on the date of offer by the Appellants to the Complainants to take possession on 23.11.2015, development of the Sector in question (98) was not complete.  Under these circumstances, it was felt that having deposited a huge amount of ₹28,41,868/-  from time to time since the year 2011, with the assurance from the Appellants that the possession of a developed plot shall be delivered within a total period of 42 months (including the grace period of 6 months), it would be unjust to the Complainants not to even  get back their Principal amount, they had deposited with the Appellants, and continue to suffer on account of payment of  interest on the funds raised for depositing the afore-stated amount”

24.        In view of above, it is held that the act of the opposite party, in offering paper possession of the unit, in question, vide letter 04.05.2015, in the absence of development work; basic amenities at the site; non-obtaining of necessary permissions including completion certificate, amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the offer of possession made by the opposite party is nothing but a paper possession, which is not sustainable, in the eyes of law.”

25.        It may be stated here that Plot Buyer’s Agreement was entered into between the parties on 21.11.2011. As per Clause 11.1 of General Clauses of the Agreement, possession of the plot, in question, was to be handed over within 24 months from the date of execution of the said Agreement with further grace period of 6 months but not later than 30 months i.e. latest by 20.05.2014. Further, as per Clause 11.2 of the Agreement, in case, possession was not offered within the stipulated period, then Opposite Party No.1 was liable to pay compensation calculated @Rs.50/- per sq. yard of the area every month until possession is actually handed over. The total price of the unit was Rs.81,94,407.03 and the complainant had made payments in the sum of Rs.77,49,695.50  to Opposite Party No.1, which was undoubtedly her hard earned money. It may be stated here that offer sent vide letter dated 12.05.2015, has been held to be a mere paper possession.

26.        Further, to deny claim of the complainant, it was also argued by Counsel for Opposite Party No.1 that as per Clause 11.3 of the Agreement, the complainant could have opted for termination of the Agreement, only after the lapse of 42 months aforesaid, from the date of execution of the same (Agreement) i.e. 24 months plus (+) 6 months plus (+) 12 months, till the notice of possession is dispatched, whereas, on the other hand, possession has been offered to him, as such, the option to terminate the same by the complainant has been irrevocably lapsed. It may be stated here that the possession offered has been held to be paper possession only and, therefore, the plea raised does not hold good. Had the possession offered been complete with development and basic amenities at the site, the position would have been different. Thus, by not offering legal and valid possession of the plot, in question, complete in all respects, Opposite Party No.1 was deficient in rendering service. The complainant is, therefore, held entitled to refund of Rs.77,49,695/-.

27.        It is to be further seen, as to whether, interest, on the amount to be refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.77,49,695/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by Opposite Party No.1, for its own benefit. There is no dispute that for making delayed payments, Opposite Party No.1 was charging heavy rate of interest, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In similar circumstances, this Commission in Consumer Complaint No.229 of 2016 titled ‘Ashish Arora Vs. M/s Puma Realtors Pvt. Ltd. and Anr.’ decided on 03.10.2016, granted refund alongwith interest @12% compounded quarterly, from the respective dates of deposits [less than the rate of interest charged by Opposite Party No.1 in case of delayed payments] till realization. The complainant is, therefore, held entitled to interest @12% compounded quarterly on the deposited amount.

28.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to her. Clearly the possession offered has been held to be a paper possession, on account of which, the complainant suffered mental agony and physical harassment. The compensation in the sum of Rs.10 Lacs claimed by the complainant is exceedingly higher. The complainant has been in default of remitting various installments as indicated in the table at Page 30 of the written statement, and 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 three months of commencement of development work a site.	12,52,246.64	16.01.2014/ 12.02.2014	16.02.2014	Part payment 14/03/2014 Balance 28/05/2014	30 Days   104 Days
Installment due on 50% completion of services.	12,52,246.53	10.07.2014/ 06.08.2014	11.08.2014/ 01.09.2014/ Final Notice Dated 22/09/2014	Part Payment of Rs.7,00,000/- on 13/10/2014. Balance claimed in the next Demand Note.	68 days
Installment due on completion of Services.	7,69,425/- + 5,52,246.53 (arrears) = 13,21,671.53	16.10.2014/ 12.11.2014	17.11.2014/ 08.12.2014	5,52,247/- on 16/10/2014 7,69,425/- on 27/12/2014 vide cheque dated 26/12/2014	71 Days for arrears 44 Days
			Total no. of days of delay		317 days

 

29.        In view of facts and circumstances of the case, especially delay in remitting the installments, the complainant is 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. Further the complainant has stated that despite seeking refund, Opposite Party No.1 did not refund the deposited amount. Admittedly, possession of the plot, in question, was offered on 12.05.2015.  The complainant sent legal notice on 20.06.2016 i.e. after complete one year, requesting Opposite Party No.1 to terminate the Plot Buyer’s Agreement and refund the deposited amount alongwith interest. The complainant was required to agitate immediately on receipt of offer of possession letter dated 12.05.2015 but she kept silent for complete one year and sought termination of the Agreement and refund of the deposited amount only in June 2016 vide legal notice (Annexure C-12). Thus, the complainant is also partly herself responsible for delay in seeking refund of deposited amount. With grant of 12% interest compounded quarterly, the complainant has been sufficiently compensated.  Under these circumstances, compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.1 lac (Rupees One Lac only), if granted, would be adequate to serve the ends of justice. The complainant is also held entitled for costs of litigation in the sum of Rs.35,000/-.

30.        In the instant case, since Opposite Party No.2 was only an employee of Opposite Party No.1, who signed the Plot Buyer’s Agreement on behalf of Opposite Party No.1, therefore, liability of any kind cannot be fastened on him. As such, complaint against him (Opposite Party No.2) is liable to be dismissed.

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

32.         For the reasons, recorded above, this complaint is partly accepted, with costs against Opposite Party No.1 only. Opposite Party No.1 is held liable and directed as under:-

 (i)   To refund the amount of Rs.77,49,695/- to   the   complainant, alongwith interest @12% compounded quarterly, with effect 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.1,00,000/- (Rupees One Lac 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 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 Opposite Party No.1, 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% compounded quarterly from the date of filing the complaint till realization.

33.        The complaint against Opposite Party No.2 is dismissed with no order as to cost.

34.        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.

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

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

Pronounced.

12.01.2017.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

Ad