Chandigarh

StateCommission

CC/95/2016

Paramjit Kaur Sachar - Complainant(s)

Versus

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

Arun Kumar

24 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	95 of 2016
Date of Institution	:	14.03.2016
Date of Decision	:	24.06.2016

 

1. Paramjit Kaur Sachar, Aged 76 years, wife of Col. D. S. Sachar (Retd.), resident of Kothi No.47, Phase 3B1, Mohali, Punjab – 160059.
2. Seerat Sachar, Aged 40 years, wife of Shri Sarabjit Singh Sachar, resident of Kothi No.47, Phase 3B1, Mohali, Punjab – 160059.

……Complainants.

Versus

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

 

….Opposite Parties.

 

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

 

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

                 SH. DEV RAJ, MEMBER.

                 

Argued by:

 

Sh. Varun Bhardwaj, Advocate for the complainant.

Sh. Ramnik Gupta, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

            The facts, in brief, are that the complainant applied for a residential plot in the project of Opposite Party No.1, namely ‘IREO Hamlet’, for their personal use and for use of their family members, total cost whereof was Rs.76,94,250/-. Initially, the complainants paid Rs.7,50,000/- to the Opposite Parties vide receipt dated 09.11.2011. Vide provisional allotment letter dated 17.11.2011, the complainants were allotted Plot No.270, measuring 307.77 Sq. Yards in the said project in Sector 98, SAS Nagar, Mohali. Plot Buyer’s Agreement was also executed between the complainants and the Opposite Parties on 25.06.2012 at Chandigarh. In all, till 29.5.2015, the complainants made payment of following amounts/installments as per demand raised by the Opposite Parties:-

Sr. No.	Mode of Payment	Exhibit Receipt No./Date	Amount deposited (Rs.)
1.	Booking Amount	C-1 12080830/9.11.2011	7,50,000.00
1.	Cheque No.145144 dt. 11.1.2012	C-5 12080950/16.1.2012	4,04,137.50
2.	Cheque No.145147 dt. 23.02.2012	C-6 12080995/28.2.2012	12,52,246.88
3.	Cheque No.000001 dt. 25.05.2013	C-7 14100279/31.5.2013	12,52,246.88
4.	Cheque No.000010 dt. 11.02.2014	C-8 14101580/15.2.2014	12,39,872.46
5.		C-9 15080010/17.4.2014	12,523.00
6.	Cheque No.070397 dt. 30.05.2014	C-10 15100366/4.6.2014	12,39,723.88
7.	NEFT dt.11.11.2014	C-11 15101394/11.11.2014	7,69,425.00
8.		C-12 15080116/1.12.2014	12,523.00
9.		C-13 15080207/12.3.2015	16,465.00
10.	NEFT dt.2.2.2015	C-14 15101831/2.2.2015	8,60,678.31
11.		29.5.2015	3,84,715.00
TOTAL			81,94,556.91

 

2.         As per clause 21.2 of the Agreement, the Opposite Parties were to carry out internal developments by laying roads, water lines, sewer lines and electrical lines etc. Further as per Clause 11.1, 11.2 and 11.3 of the Agreement, possession of allotted plot was to be handed over by the Opposite Parties within a period of 42 months from the date of execution of the Agreement.

3.         The complainants visited the spot in November, 2014 as also in the last week of April, 2015 and found that there was no development at the site. It was further stated that the Opposite Parties very cleverly issued letter dated 06.05.2015 offering possession to the complainants. It was further stated that the Opposite Parties themselves admitted in letter dated 29.06.2015 that there were no basic amenities at the site. 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 complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) claiming refund of Rs.81,94,556.91 alongwith up-to-date interest as prevailing in the market from the respective dates of deposits, Rs.5,00,000/- 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 25.06.2012; that the complainants were not consumers as the present complaint related to enforcement of agreement to sell/purchase of a residential plot i.e. an immoveable property and hence was not covered under 1986 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 the complainants did not book the plot for their personal use but for investment/commercial purpose; that the allegations in the complaint being of contractual nature, were only triable by the Civil Court and that the complainants are not consumers as they did not buy any goods.

6.         On merits, it was admitted that the complainants applied for residential plot in the project of Opposite Party No.1. It was denied that Rs.76,94,250/- was agreed as the total cost of the plot. It was further stated that the period of handing over of the plot was subject to the complainants complying with all their obligations under the terms and conditions of the Agreement. It was further stated that it was not agreed that possession was to be offered after expiry of 42 months from the date of Agreement. On the contrary, it was agreed vide Clause 11.1 of the Agreement that the complainants shall punctually pay the due installments in time and further, if the Opposite Parties failed to offer possession on expiry of grace period (30 months), the Opposite Parties shall be liable to pay compensation @50/- per sq. yard per month till actual date fixed for handing over of possession. It was further stated that the complainants never opted for termination of allotment before dispatch of notice of possession dated 06.05.2015. It was further stated that the possession was offered on 06.05.2015 and thereafter, the complainants duly made payment of the last and final installment vide RTGS dated 26.5.2015. 

7.         It was further stated that development work commenced on site w.e.f. 01.05.2013 and stood carried on continuously in a phased manner at a good pace till April, 2015 and resultantly, the Opposite Parties started process of handing over of the developed plots by way of issuing notices of possession to various allottees w.e.f. 4.5.2015. It was denied that there was no development at the site either in November 2014 or in April 2015. It was further stated that all basic amenities/facilities for handing over a plot in a plotted colony, were in existence at the site at the time of offer of possession on 06.05.2015.  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.

8.         It was further stated that the Opposite Parties have been granted exemption from all the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short ‘PAPRA 1995’) by the Punjab Govt. vide notification dated 14.08.2008 except the provisions of Section 32 of PAPRA 1995. 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.

9.         The complainants, in support of their case, submitted their separate affidavits, by way of evidence, alongwith which, a number of documents were attached.

10.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Rajneesh, 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 complainant No.1 vide provisional allotment letter dated 17.11.2011 (Annexure C-2) was allotted Plot No.270 in the residential project “IREO Hamlet” admeasuring 307.77 sq. yard, Sector 98, SAS Nagar, Mohali, the 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 complainants and the Opposite Parties on 25.06.2012 (Annexure C-4) at Chandigarh. The payment against the aforesaid plot  was to be regulated as per payment plan, Annexure I (at Page 53 of the file). Against the total price of  the plot including External Development Charges and IFMS Charges, the complainants made payment in the sum of Rs.81,94,556.91. As admitted by the Opposite Parties, the development work started at the site only on 01.05.2013, almost one year after the execution of Plot Buyer’s Agreement dated 25.06.2012. The possession was offered on 06.05.2015 i.e. before filing of the complaint on 14.03.2016. The case of complainants is that possession offered was without complete development and basic amenities and the Opposite Parties did not have all the approvals when possession was offered.

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 jurisdiction to entertain the consumer complaint or not. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, 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.”

            Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Agreement, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in  Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). 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.”

 

            In view of the above, and also in the face of ratio of judgments, referred to above, the arguments raised by the Counsel for the Opposite Parties, stand rejected.

14.         To defeat claim of the complainants, the next objection raised by the Opposite Parties was that the complainants, being investors, had purchased the plot, in question, for earning profits, as and when there is escalation in the prices of real estate. It was further stated that since Kothi No.47, Phase 3B1, Sector 60, Mohali is owned by the husband of complainant No.1 where the complainants are residing alongwith their family members, the purchase of plot, in question, was for investment purposes and, as such, they would not fall within the definition of a ‘consumer’, as defined by Section 2(1)(d)(ii) of 1986 Act. Counsel for the Opposite Parties placed reliance on M/s. TDI Infrastructure Pvt. Ltd. Vs. Rajesh Jain, Revision Petition No.1628 of 2015 decided by the National Commission on 01.12.2015; M/s. TDI Infrastructure Pvt. Ltd. Vs. Rajesh Jain, Revision Petition No.1627 of 2015 decided by the National Commission on 01.12.2015; Mehmooda Sheikh Vs. M/s Distinct Infrastructure Ltd. & 3 Ors., Revision Petition No.2962 of 2015 decided by National Commission on 14.3.2016 alongwith which, connected Revision Petitions Nos.2963 of 2015 to 2970 of 2015 were also decided. In so far as M/s. TDI Infrastructure Pvt. Ltd. Vs. Rajesh Jain’s cases (supra) are concerned, the same being distinguishable on facts are of no help to the Opposite Parties, as in those cases, the complainant was asked to show the present status of the property owned by him and what steps he was going to take to shift to Delhi but the story remained unclear despite explanations. It may be stated here that there is nothing, on the record to show, that the complainants are property dealers, and are indulged in sale and purchase of property, on regular basis. In the instant case, the complainants have specifically stated in the opening para of the complaint that they booked the plot, in question, for their personal use and for the use of their family members. No doubt, a house in Mohali is owned by the husband of complainant No.1 but it is a fact that with the passage of time, requirement of family increases and, therefore, purchase of second plot by the complainants would not mean that the complainants do not fall within the ambit of definition of ‘consumer’. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. The facts of Mehmooda Sheikh Vs. M/s Distinct Infrastructure Ltd. & 3 Ors’s case (supra) are also distinguishable as in that case, the complainants were allotted nine plots. The National Commission in Paras 8 and 9 observed that “…… why the family need nine plots plus house, where they are residing now a days.” It was further observed that had the intention of the petitioners/complainants been fair, she/he would have purchased the same in his/her individual name that too 4 to 5 plots only. It may be stated here that in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the flat, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of 1986 Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

15.         The next question, that falls for consideration, is, as to whether, there is a contract to sell a piece of land i.e. a plot only, to the complainants and no service was to be provided as alleged, by the Opposite Parties, to them (complainants), as such, they would not fall within the definition of ‘consumer’. It may be stated here that the stand taken by the Opposite Parties, needs rejection, in view of Clause  21.2 of the Agreement, which reads thus:-

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

 

16.       Perusal of contents of the afore-extracted Clause, clearly goes to reveal that it was specifically stated that the Company shall carry out internal development within the project, which included laying of roads, water lines, sewer lines, electrical lines etc., however, external development thereof, will be the responsibility of State Government. Above Clause leaves no doubt that possession of fully developed plot, over which construction can be raised, was a promise made by the Opposite Parties, to the complainants. Not only as above, IREO project is a part of Mega Housing Project. If it is so, it cannot be said that piece of land will be sold to a consumer, without making any development. The said Mega Housing Project is covered under the provisions of Punjab Apartment and Property Regulation Act 1995. Thus, since, it was bounden duty of the Opposite Parties to provide basic facilities and infrastructure to make the plot habitable, as such, it cannot be said that only a piece of land i.e. only a plot was to be delivered to the complainants, without any amenities/facilities. Under similar circumstances, in Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  the National Commission, held as under:-

“In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the appellant-company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/ amenities, lay-out approvals etc. was a ‘service’ within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute. Having regard to the nature of the transaction between the appellant-company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted ‘service’ within the meaning of the Act. It was not a case where the appellant-company was selling the given property with all 7 Page 8 advantages and/or disadvantages on “as is where is” basis, as was the position in U.T. Chandigarh Administration and Anr. v. Amarjeet Singh and Ors. (2009) 4 SCC 660. It is a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents”.

            Besides this, in Haryana State Agricultural Marketing Board vs. Bishamber Dayal Goyal and Ors., Civil Appeal No.3122 of 2006, decided on 26.03.2014 (AIR 2014 S.C. 1766), the Hon’ble Supreme Court, while placing reliance on Municipal Corporation, Chandigarh &Ors. vs. Shantikunj Investment (P) Ltd.&Ors., (2006) 4 SCC 109, held that though it was not a condition precedent but there is an obligation on the part of the Administration to provide necessary facilities such as roads, drainage, drinking water, sewerage, street lighting etc. etc., for full enjoyment of the same by allottees. In view of above facts, the plea taken by the Opposite Parties, in this regard, stands rejected.

17.       Another objection raised by the Opposite Parties was that since the complainants sought enforcement of the Agreement, in respect of the immoveable property, only a Civil Court can decide the complaint, and as such, consumer complaint was not maintainable. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the plot, in question, in the manner, referred to above. According to Clause 11 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to  hand over possession of the plot, in question, within a period of thirty months, from the date of execution of the same (Agreement). Section 2 (1) (o) of 1986 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”

 

18.       From the afore-extracted Section 2(1)(o) of 1986 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.’s case (supra),  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 1986 Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors.’s case (supra). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of 1986 Act, can be availed of by them, as they fall within the definition of a consumer, as stated above. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

19.       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 06.05.2015 or not. The Counsel for the complainants submitted that possession of the plot, in question, vide letter dated 06.05.2015 was not complete, valid and legal possession.     

20.       The complainants have specifically challenged the offer of possession dated 06.05.2015 by way of filing the instant complaint for not obtaining necessary approvals from the Competent Authorities by the Opposite Parties and lack of development and basic amenities at the site. 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 complainants.

21.       The Opposite Parties have placed on record, copy of letter dated 29.06.2015 as Annexure OP-30, which has been issued to complainant No.1 after offer of possession, wherein they (Opposite Parties) 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.
• We are 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.
• 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. 
• Features like swings etc. shall be provided in due course of time.

22.       Though it is evident from Memo No.5001 dated 7.8.2015 (Annexure OP-19), which is letter from the Chief Electrical Inspector to Govt. Punjab, Patiala wherein it was stated that inspection of subject cited electrical installation was carried out by the Electrical Inspector 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 06.05.2015.

23.       Even the final NOC to the Opposite Parties 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 06.05.2015. Further, the Opposite Parties have themselves, placed, on record, copy of application dated 29.06.2015 (Annexure OP-29), which clearly shows that they (Opposite Parties) 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 06.05.2015. The Opposite Parties have averred that they were exempted under PAPRA, except provisions of Section 32 thereof, vide notification dated 14.8.2008 and were not required to obtain completion certificate and they applied for partial completion certificate only for the benefit of the complainants. Counsel for the complainants argued that the Opposite Parties were required to obtain completion certificate in view of Govt. Notification dated 02.09.2014. In the instant case, possession was offered on 06.05.2015 but the Opposite Parties applied for partial completion certificate on 29.06.2015.

24.       This Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd.  and  another’s  case  (supra),  in  Para  36  held that  basic facilities like roads, sewerage, drinking water, electricity, street lights, drainage etc. were to be provided by the Opposite Parties to the complainant. In the case in hand, there is also nothing, on record, that complete development, in respect of the plot, in question, and amenities at the site as promised, as per the Plot Buyer’s Agreement dated 25.06.2012, Annexure C-4, were available at the site. Had the amenities been completed at the site, then certainly the Opposite Parties, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed, on record, their reports, to prove that factum. The fact that certain amenities and approvals were complete/obtained after offer of possession, clearly proves deficiency of the Opposite Parties, as is evident from the position indicated hereinafter. It is evident from record that final NOC granted by PSPCL on 08.07.2015 (Annexure OP-18) was also after notice of possession dated 06.05.2015. Even letter dated 18.05.2015 (Annexure OP-16) from Greater Mohali Area Development Authority (GMADA), informed the Opposite Parties that “…….Therefore, the arrangements for suitable provision for drinking water supply and safe disposal of sullage/storm discharge and solid waste management shall be made by promoter at his level separately and he shall obtain all necessary approvals from the concerned Authorities as per law in this regard independently. The construction work shall commence only after obtaining approvals as per law from the concerned Authorities……” Besides, number of other conditions were also required to be complied with by the promoter. The Opposite Parties have not stated whether they complied with the aforesaid conditions.

25.       In Abha Arora Vs. Puma Realtors Pvt. Ltd. and another’s case (supra), it was held that amenities were not complete. In Abha Arora’s case (supra), this Commission in Para 47 noted with concern, a very serious deficiency committed by the Opposite Parties, in providing service to the complainants, which is extracted hereunder:-

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

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

 

Thus, the Opposite Parties cannot wash off their responsibility for non-development of external infrastructure on the ground that the same was the obligation of the State Government. When they (Opposite Parties) have received External Development Charges, they were duty bound to ensure by pursuing with the State Government that external infrastructure was complete by the time possession was offered. It was obligatory on part of the Opposite Parties to handover possession to the complainants complete in all respects but they miserably failed to do so. Clearly development and amenities were not complete when possession was offered to the complainants vide notice of possession dated 06.05.2015.

26.       The next question which falls for consideration, is, whether the complainants are entitled to refund of the entire amount deposited by them. It may be stated here that offer of possession sent vide letter dated 06.05.2015 is a mere paper possession. A similar question arose in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another’s case (supra) wherein this Commission in Paras 44 to 46 held as under:-

“44. Whether the complainant is entitled to refund of the entire amount deposited by her. It may be stated here that offer sent vide letter dated 21.05.2015, has been held to be a mere paper possession and as on date, the opposite parties are not in a position to deliver possession of the plot, in question. Under these circumstances, it is justifiable for the complainant to say no to the same. It was so said by the National Consumer Disputes Redressal Commission, New Delhi in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). In the above case, possession was not delivered in time. Complaint was filed for refund of amount paid. The State Commission partly allowed it. The builder was allowed to forfeit 10% of the deposited amount, on the ground that the complainant himself rescinded the contract by asking refund of the amount, as possession of the unit had already been offered to him. The remaining amount was allowed to be returned with interest. The complainant in that case was also awarded litigation cost etc. The builder namely Emaar MGF Land Limited went in appeal, which was dismissed, wherein it was specifically observed by the National Commission, that when the promoter/builder has violated material condition in not handing over possession, in time, it is not obligatory for the purchaser to accept possession after that date. The principle of law laid in the aforesaid case, is fully applicable to the instant case. On account of that, the complainant is entitled to get refund of amount deposited by her. In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her, as also escalation in prices.

45.  It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.65,56,513/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the opposite parties, for their own benefit. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs.65,56,513/- alongwith interest compounded quarterly @12% from the respective dates of deposits (less than the rate of interest charged by the opposite parties, in case of delayed payment), till realization.

46.  Further, to deny the claim of the complainant(s), it was also argued by Senior Counsel for the opposite parties/ builder that as per Clause 11.3 of the Agreement, they (complainants) could have opted for termination of the Agreement, only after the lapse of 42 months aforesaid, from the date of execution of the same (Agreement) i.e. 24 months plus (+) 6 months plus (+) 12 months, till the notice of possession is dispatched, whereas, on the other hand, in all the cases, possession has been offered, as such, the option to terminate the same (Agreement) by them (complainants) has been irrevocably lapsed.  Further, in some cases, since offer of possession has been made to the allottees, within the period of 42 months, from the date of execution of the Agreement, as such, they were barred to opt termination of the Agreement, as per Clause 11.3.

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

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

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

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

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

27.       Since the Plot Buyer’s Agreement was executed on 25.06.2012, 30 months period including 6 months grace period expired on 24.12.2014. Even 12 months extended period, in terms of Clause 11.3 of the Agreement expired on 25.12.2015. No doubt, the possession was offered to the complainants vide notice of possession dated 06.05.2015, yet the same has been held to be a paper possession as has been discussed in the preceding paras. Finding the possession, so offered, to be a paper possession, the complainants filed the instant complaint on 14.03.2016. Though the complainants deposited the amounts as per demand raised by the Opposite Parties after getting notice of possession, but deposit of such an installment does not take away the right of the complainants to seek refund when clearly, the possession offered was without complete development and basic amenities.

28.       It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill ‘s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. 

29.       In the present case also, the Opposite Parties committed breach of their obligation by offering the possession of the plot on 06.05.2015 hurriedly without complete development and basic amenities. A perusal of Clause 11.3 of the Plot Buyer’s Agreement clearly provides that “……..from the end of the Grace Period (such 12 month period hereinafter referred to as the “Extended Delay Period”), then the Allottee shall become entitled to opt for termination of the Allotment/Agreement and refund of the actual paid up installment(s) made against the said Plot….”. When the Opposite Parties are charging interest for any delay in making payment of installments, its plea that the complainant cannot invoke provisions of Clause 11.3 of the Agreement is not justified being unreasonable. In our opinion, Clause 11.1 cannot have overriding effect over Clause 11.3 of the Agreement. Thus, since the Opposite Parties  failed to handover legal and valid possession of the plot, in question, with complete development and all basic amenities, to the complainants, in view of law laid down in Emaar MGF Land Limited and another Vs. Dilshad Gill ‘s case (supra), the complainants were entitled to seek refund. Thus, in our considered opinion, by not refunding the same, the Opposite Parties were deficient in rendering service.

30.       From the aforesaid discussion, it is evidently clear that neither the Opposite Parties have completed the development and basic amenities nor did they have all the necessary sanctions/approvals from the Competent Authorities up-till 06.05.2015, when possession was offered to them (complainants). Thus, the contention of the complainants that possession offered was not a valid and legal possession is corroborated from the evidence on record. It is, therefore, held that the Opposite Parties were not only deficient, in rendering service but also indulged into unfair trade practice, by offering a paper possession to the complainants, before completing the basic amenities as also without obtaining the necessary sanctions/approvals.

31.       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.81,94,556.91 was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. The Opposite Parties were charging heavy rate of interest, 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) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.81,94,556.91 alongwith interest compounded quarterly @12% from the respective dates of deposits, till realization.

32.       In view of aforesaid position, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

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

34.        For the reasons, recorded above, the complaint is partly accepted, with costs. The Opposite Parties are, jointly and severally, held liable and directed as under:-

(i)   To refund the amount of Rs.81,94,556.91, to   the   complainants,   alongwith interest compounded quarterly @12%, 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.3,00,000/-  (Rupees Three Lacs only), to the complainants, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices, within a period of 45 days from the date of receipt of a certified copy of the order.

(iii) To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants within a period of 45 days from the date of receipt of a certified copy of the order.

(iv)  In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with interest compounded quarterly @15%, from the respective dates of deposits, till realization and amount mentioned in Clauses (ii) and (iii) above, with interest compounded quarterly @12% from the date of filing the complaint till realization.

35.       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.

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

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

Pronounced

June  24, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

[DEV RAJ]

MEMBER