Chandigarh

StateCommission

CC/79/2016

Parveen Mangla - Complainant(s)

Versus

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

Paras Money Goyal

08 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	79 of 2016
Date of Institution	:	01.03.2016
Date of Decision	:	08.07.2016

 

Parveen Mangla son of Sh. Subhash Mangla R/o House No.1757, Nirwana Society, Sector 49-B, Chandigarh.

 

……Complainant.

Versus

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

….Opposite Parties.

Argued by:

 

Sh.  Paras Money Goyal,  Advocate  for  the complainant.

Sh. Ramnik Gupta, Advocate for Opposite Parties.

 

Consumer Complaint	:	80 of 2016
Date of Institution	:	02.03.2016
Date of Decision	:	08.07.2016

 

1. Upvinder Singh Dhall S/o Sh. Upkar Singh Dhall,
2. Davinder Kaur Dhall W/o Sh. Upvinder Singh Dhall,

Both residents of H.No.2234, Second Floor, Sector 38C, Chandigarh.

 

……Complainants.

Versus

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

….Opposite Parties.

Argued by:

 

Sh.  Paras Money Goyal,  Advocate  for  the complainants.

Sh. Ramnik Gupta, Advocate for Opposite Parties.

 

Consumer Complaint	:	82 of 2016
Date of Institution	:	02.03.2016
Date of Decision	:	08.07.2016

 

1. Deepak Saluja S/o Sh. O. P. Saluja,
2. Anureet Saluja W/o Sh. Deepak Saluja,

Both residents of 3240/2, Sector 40-D, Chandigarh.

 

……Complainants.

Versus

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

….Opposite Parties.

Argued by:

 

Sh.  Paras Money Goyal,  Advocate  for  the complainants.

Sh. Ramnik Gupta, Advocate for Opposite Parties.

 

Consumer Complaint	:	101 of 2016
Date of Institution	:	16.03.2016
Date of Decision	:	08.07.2016

 

Vikas Nijhawan S/o Sh. Subhash Nijhawan R/o House No.18, Shanti Nagar, Model Town, Panipat, Haryana.

 

……Complainant.

Versus

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

….Opposite Parties.

 

 

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

 

BEFORE: SH. DEV RAJ, PRESIDING MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

Argued by:

 

Sh.  Paras Money Goyal, Advocate for the complainant.

Sh. Ramnik Gupta, Advocate for Opposite Parties.

 

PER DEV RAJ, PRESIDING MEMBER

            Vide this common order, we propose to dispose of four complaints bearing No.79/2016, 80/2016, 82/2016 and 101/2016, referred to above. Since the facts involved in these complaints are almost identical, the facts are being culled from complaint case No.79 of 2016 titled as ‘Sh. Parveen Mangla Vs. PUMA Realtors Private Limited & Another’.

2.         The facts, in brief, are that the complainant being Regional Head with HDFC Bank and posted at Chandigarh, is presently residing in a rented premises in Chandigarh alongwith his wife and children, with a hope to own a house, approached the sale staff of the Opposite Parties and being impressed with their tall claims requested them to provide a flat on first floor. He was allotted a flat in JUNIPER COURT B having  super area of 1511 Sq. Ft. with one parking space vide Apartment Buyer’s Agreement dated 15.03.2012 (Annexure C-1) at total consideration of Rs.50,75,860/- excluding external development charges, parking charges etc. The complainant paid, in all, a sum of Rs.49,09,675/-, being 95% of the consideration money, to the Opposite Parties as per statement of account (Annexure C-2). The complainant also took loan from HDFC Bank and he is paying an EMI of Rs.34,770/- per month. As per Clause 13.3 of the Agreement, possession of the flat was to be delivered by the Opposite Parties within 30 months from the date of the Agreement, which stood expired in September 2014. As per the complainant, possession has not been delivered till date and, as such, there is willful and intentional delay of more than 17 months  from the cut-off date in offering possession. It was further stated that in default of delivering possession within the stipulated period, as per Clause 13.4 of the Agreement, the complainant was entitled to delay compensation @Rs.7.5 per sq. ft. per month, which came to be Rs.11,332.50 per month, which does not in any way safeguard the interest of the complainant being inadequate. It was further stated that the builder, namely, L & T, to whom the project had been entrusted for construction, had withdrawn and some local builder has been engaged, as per letter dated 20.12.2015 (Annexure C-4). It was further stated that the development/construction work at site has come to a standstill.

3.         It was further stated that in the Agreement, the Opposite Parties had offered various amenities viz. Solar water heating for kitchen, multipurpose hall, swimming pool, fully equipped gym, badminton and basket ball courts, kids play area with seesaws, baby slides, sandpit, jogging tracks, visitors car parking, intercom facility and CCTV, which facilities have not been started to be developed in the project. It was further stated that the drop of road up-till the tower has not been constructed. It was further stated that the complainant is apprehensive that the Opposite Parties shall not apply for regular electricity connection with the Govt. Department and shall keep on supplying the electricity at exorbitant rates to the occupants by installing generator sets. It was further stated that as per Annexure-I, annexed to the Agreement, the Opposite Parties have not taken upon themselves to provide modular kitchen and their intent is only to offer incomplete modular kitchen i.e. by providing cupboards only in the lower portion of the kitchen and not in the upper portion. It was further stated that the Opposite Parties even backed out from their commitment of providing split AC fittings in all the rooms including bedrooms. 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) seeking directions to the Opposite Parties to hand over possession of the flat, in question, complete in all respects, with all amenities; pay compensation for delayed possession as per Clause 13.4 of the Agreement, alongwith interest @15% per annum; Rs.10,00,000/- as compensation on account of harassment and mental agony;  ad Rs.50,000/- as litigation charges.

5.         The Opposite Parties, in their 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.34 in the Plot Buyer’s Agreement dated 15.03.2012; 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 allegations in the complaint being of contractual nature, were only triable by the Civil Court and that the complainant is not a consumer as he did not buy any goods. In connected complaint No.82 of 2016, apart from above objections, a specific objection with regard to the territorial jurisdiction of the Commission on account of existence of Clause 36 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, it was stated that besides Rs.50,75,860/-, payment towards govt. taxes/fee/ charges viz. service tax, stamp duty, registration charges etc., as may be applicable from time to time, were also payable by the complainant. It was further stated that amount of Rs.50,75,860/- included the external development charges. It was denied that the complainant had paid Rs.49,09,675/- as against total sale consideration of Rs.50,75,860/- in as much as payment of final installment i.e. Rs.2,43,749/- towards BSP plus Rs.7,555/- towards EDC and Rs.45,330/- towards IFMS besides applicable service tax, are yet to be paid by the complainant, on receipt of occupation certificate. It was further stated that in terms of Clause 13.4 of the Agreement, the complainant duly agreed to receive liquidated damages from the end of the grace period i.e. 30 months plus 6 months, till possession is actually offered. It was further stated that after start of construction in the project, the same is continuously being carried on. It was further stated that the structure of all seven towers constituting the IREO Rise Project, which included all the apartments, have been constructed by L & T only but having found delay on the part of L & T, the Opposite Parties commissioned M/s Akalia Constructions (a sub-contractor of L&T) for undertaking the finishing works for Juniper Block and Frangipani Block. It was further stated that the construction work in Juniper Court Building, in which the apartment allotted to the complainant is situated, has already been completed by L&T and finishing work is in progress by M/s Akalia Constructions. It was further stated that all the amenities and facilities shall be completed and made available for the residents by the time, possession, complete in all respects, of all the apartments is handed over. It was further stated that the Opposite Parties never proposed to offer possession of the apartment without completing the amenities. It was further stated that the Opposite Parties are in progress of obtaining approvals for additional areas , as agreed under Clauses 10.10 and 22.3 of the Agreement.

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

8.         It was further stated that the Opposite Parties have already constructed underground water tanks duly connected with the approved bore well, which have further been connected to the overhead tanks of each tower with pumping system to supply the water for domestic use. It was further stated that the Opposite Parties have already constructed and installed underground STP for the disposal of the sewage to meet the norms and requirements of Ministry of Environment. It was further stated that it was nowhere agreed that modular kitchen comprising of both upper and lower portion would be provided. It was further stated that there was no agreement to provide Split AC fittings in all the rooms, rather on the contrary, said Agreement provides for provision for Split AC. It was further stated that the Opposite Parties have made provision for Window ACs in the bedrooms. 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 complainant filed rejoinder, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.

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

11.       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. 

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

13.       It is evident, on record, that the complainant was allotted Apartment No.003, Category General on First Floor, Juniper Court B, 3B2TS Type having tentative super area of 1511 sq. ft. (140.37 sq. mtrs.) together with one parking space, forming indivisible part thereof and Apartment Buyer’s Agreement was executed between the complainant and the Opposite Parties on 15.03.2012 (Annexure C-1). The basic sale price of the unit was Rs.48,79,430/- besides External Development Charges (EDC) Rs.1,51,100/- and IFMS charges Rs.45,330/-. Thus, the total sale consideration of the unit, in question, including service tax was Rs.52,01,505/-. The payment against the aforesaid unit was to be regulated as per Payment Plan, Annexure IV (at Page 44 of the file). The complainant made payment in the sum of Rs.49,09,675/- as is apparent from statement of accounts as on 4.2.2016 (Annexure C-2). It was admitted that the construction work in Juniper Court Building, in which the apartment allotted to the complainant is situated, has already been completed by L&T and finishing work is in progress by M/s Akalia Constructions. It was also admitted that all the amenities and facilities shall be completed and made available for the residents by the time, possession, complete in all respects, of all the apartments is handed over. The Opposite Parties also stated that they never proposed to offer possession of the apartment without completing the amenities and they are in progress of obtaining approvals for additional areas, as agreed under Clauses 10.10 and 22.3 of the Agreement.

14.       During arguments, Counsel for the complainant stated that he does not wish to press the issues relating to change of contract from L & T to M/s Akalia Constructions and provision for the electricity, water and sewerage, as contained in Paras 13(a) and 13(h) of the complaint.

15.       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.

16.         The next question, that falls for consideration, is, as to whether, there is a contract to sell an apartment only, to the complainant and no service was to be provided as alleged, by the Opposite Parties, to him (complainant) and, as such, he 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 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), wherein 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. Thus, since, it was bounden duty of the Opposite Parties to provide basic facilities and infrastructure to make the flat habitable, as such, it cannot be said that only an apartment was to be delivered to the complainant, without any amenities/facilities. Under similar circumstance, 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”.

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 complainant sought enforcement of the Agreement, only a Civil Court has the jurisdiction, and as such, consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing an apartment , in question, in the manner, referred to above. According to Clause 13.3 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 apartment, 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 complainant has remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of 1986 Act, can be availed of by him, as he falls 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.       In the connected complaint No.82 of 2016, an objection has been raised by the Opposite Parties that existence of Clause 36 in the Apartment Buyers Agreement (in all these complaints), bars the territorial jurisdiction of this Commission, to entertain and try the complaint. It may be stated here that according to Section 17 of the Act, a consumer complaint could 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, that letters dated 15.03.2012 (Annexure C-3, at Page 56 of the file) and 30.12.2015 (Annexure C-4), at Page 57 of the file, with regard to intimation on construction activities, were addressed to the complainant from the Chandigarh address of the Opposite Parties i.e.. SCO Nos.6-7-8, Second Floor, Sector 9-D, Madhya Marg, Chandigarh. Thus, a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. A similar question arose, before the National Commission, in Smt. Shanti Vs. M/s. Ansal Housing & Construction Ltd., First Appeal No.142 of 2001 decided by the National Commission on 11.04.2002, wherein the National Commission held as under:-

   “This appeal is directed  against  the  order dated  9.4.2001  of the Delhi Consumer Disputes Redressal Commission  non suiting the appellant on a preliminary issue holding that  Delhi State Consumer Dispute  Redressal Commission will have no jurisdiction  to entertain the complaint.

    What led the State Commission to pass this order was clause 24 of the agreement for allotment of residential flat to the appellant.   It is stated that ‘any dispute arising out of this agreement shall be subject to jurisdiction of Lucknow Courts only”.  State Commission   also   relied   on   the   decision of   the Supreme Court in the case of  A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A.P. Agencies, Salem - AIR 1989 SC 1239 to hold that only the courts in Lucknow  would have jurisdiction.

      We do not think State Commission examined the whole issue in a pragmatic manner.  Complainant is a consumer and raised a consumer dispute under the Consumer protection Act, 1986. To help  and assist a consumer   and to achieve the objects of the Act, Section 11 of the Act was amended.   This  Section relates to  the jurisdiction of the District Forum.  Now  a complaint could be filed against the opposite party  not only at the place where  he actually or voluntarily reside or personally works for  gain  but also where he carries on business or has branch office.  The words “carries  on business or has a branch office” were added by the amending Act of 1993.   Jurisdiction of a District Forum is exclusively covered  by Section 11 of the Act.  For this we do not have to refer any provisions of the Code of Civil Procedure. Any provision  of the agreement which oust the jurisdiction of a District Forum   even from a place where the opposite  party has a branch office  cannot  be held to be  valid or binding.  Moreover, the clause  on which the complainant was non-suited   refers to the jurisdiction  of Lucknow Courts.  District Forum is  not a court as understood in the Code of Civil Procedure.   That clause in the agreement  will have no  meaning as far as jurisdiction of the District Forum where the opposite party has even branch office is concerned. 

      National Commission has already taken a view on this aspect of the matter.  Accordingly the impugned order of the State Commission is set aside and the matter is remanded to the State Commission to decide the complaint in accordance with law. Party shall appear before the State Commission on 8.7.2002 for further directions.  This appeal is disposed of as above.”

It may be stated here that, for determining the territorial jurisdiction, to entertain and decide the complaint, the  Consumer Foras are bound by  the provisions of Section 11 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, as the Foras are not  the Courts.  It was further held, in the said case, that there is a difference between Section 11 of the Act, and the provisions of  Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. Further, 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.  In Cosmos Infra Engineering  India  Ltd. Vs Sameer Saksena & another I (2013) CPJ31 (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 of 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 of 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 Section 11 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case.  At the same time, it is also held in the face of case Ethiopian Airlines Vs Ganesh Narain Saboo’s (supra),decided by the Supreme Court of India, the judgment titled as M/s Taneja Developers and Infrastructure Limited Vs. Gurpreet Singh and another, First Appeal No.33 of 2014, decided on 25.02.2016, by the National Commission, reliance whereupon has been placed by Counsel for the opposite parties, to support his contention, that this Commission has no territorial jurisdiction, shall not hold the field. In these circumstances, such a Clause contained in the Agreement, therefore, 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 objection taken by the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

20.       The next question, which falls for consideration, is, as to whether the construction of approximately 70 flats over the existing tower(s) by the Opposite Parties is at the cost of existing common facilities/amenities and against the agreed terms and conditions. Relevant clauses 22.3 and 10.10 in the Apartment Buyer’s Agreement read as under:-

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

 

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

 

Though an averment to this effect was made in the complaint but no relief qua this has been sought in the prayer clause. In view of aforesaid, we are inclined to agree with the Opposite Parties that construction of additional flats is in accordance with the specific provision in the Apartment Buyer’s Agreement. The objection of the complainant is, therefore, not tenable. The Opposite Parties are well within their rights to raise construction of additional flats in terms of provisions in the agreement.

21.       The next question, which falls for consideration, is, as to whether the Opposite Parties by not providing split AC fitting and complete modular kitchen were deficient in rendering service. As per Annexure I, the Opposite Parties were to make provision for split AC and modular kitchen. The provision and specifications, so mentioned in Annexure-I appended to the Agreement, at Page 115 of the file, qua the aforesaid two facilities, are extracted hereunder:-

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

 

Admittedly, the provision in accordance with the specifications in the Apartment Buyer’s Agreement was not made. It was argued on behalf of the Opposite Parties that it was nowhere agreed that modular kitchen comprising of both upper and lower cabinets/cupboards was to be provided. It was further argued that it was nowhere mentioned that portion above the working slab is a must for a modular kitchen. The Opposite Parties cannot draw their own conclusion that modular kitchen would be complete, even if the cup-boards are provided only below the slab. Had it been so mentioned in the specifications, the position would have been different. When it is clearly mentioned that modular kitchen is to be provided, it would mean that modular kitchen with cup-boards below and above the slab is to be provided. The Opposite Parties have also not been able to clarify, why the provision of split AC fittings was not made. Therefore, the Opposite Parties are clearly deficient in not providing these facilities in the Apartment. They are, therefore, liable to provide modular kitchen with cup-boards upper the slab also and so also the provision for split AC fittings in the bedrooms and drawing & dining room.

22.       The next question, which falls for consideration, is, whether the alleged unilateral act of non-constructing of the drop road is an act of deficiency on the part of the Opposite Parties. The Opposite Parties, in their written statement(s) have categorically denied the allegation of non-construction of the drop road, in question. It has been submitted by the Opposite Parties that all internal roads including the alleged road would be fully developed as per approved plan. However, in consumer complaint No.101 of 2016, it was stated by the Opposite Parties that drop-road till the tower in respect of apartment of Sh. Vikas Nijhawan has already been constructed and is available at the site. Therefore, we do not find any deficiency on this account, which can be attributed to the Opposite Parties.

23.       The next question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainant and whether the complainant is entitled to delivery of possession of the apartment. As stated above, according to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement). Period of 30 months expired on 15.09.2014. On account of force majeure circumstances, referred to above, the opposite parties were entitled to advantage of 180 days grace period. The Opposite Parties have failed to place, on record, any cogent evidence or justification to seek extension of 180 days. However, it is an admitted fact that possession of the unit, in question, has not been offered, even by the date of filing the instant complaint, or even till date, for want of basic amenities at the site despite the fact that 95% of the sale consideration i.e. Rs.49,09,675/-  out of Rs.52,01,505/-, has been paid by the complainant.  No doubt, the Opposite Parties have admitted in their written statement that the amenities and facilities shall be completed and made available for the residents by the time, possession, complete in all respects, of all the apartments is handed over, yet, they failed to place, on record, any cogent and convincing evidence, that  construction of the unit is going to be complete in the near future and also that development in area is in progress. The Opposite Parties were, therefore, duty bound to hand over possession within 30 months i.e. by 15.09.2014. The Opposite Parties have not so far applied for occupation certificate. No doubt in letter dated 30.12.2015, the Opposite Parties had stated that they would be offering possession from June 2016 onwards in a phased manner, the fact remains that possession has still not been offered. The Counsel for the Opposite Parties could not give any firm date, by which the Opposite Parties would be handing over possession. Clearly there is delay in delivering possession. By making a misleading   statement, that possession of the unit, was to be delivered within the maximum period of 30 months from the date of execution of the Agreement and within further extended period of 180 days and by not abiding by the commitment made despite payment of around 95% payment by the complainant, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant is certainly entitled to physical possession of the unit, in question.

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

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

9.      xxxxxxxxxxxxx

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

(1)         xxxxxxxxxxxxxx

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

25.             No doubt in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainant for delay, but it does not mean that even in the event of inordinate delay, that too without justified reasons, in completing the construction and delivering the possession, the complainant would be entitled to meagre compensation of Rs.7.50 per sq. ft. of super area, which is much less than the bank rate for loan or fixed deposit. If the argument of the opposite parties is to be accepted, it would lead to absurd situation and would give an unfair advantage to the unscrupulous builder, who might utilize the consideration amount meant to finance the project, by the buyer, for its other business venture, at nominal interest of 3 to 4 per cent, as against much higher bank lending rates. This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act.       The judgments relied upon by the Opposite parties in Kailash Nath Associates Vs. Delhi Development Authority and another, (2015) 4 Supreme Court Cases 136 and  Fateh Chand Vs. Balkishan Dass, (1964) 1 SCR 515 : AIR 1963 SC 1405, are distinguishable on facts and are, thus, of no help to the Opposite Parties.

26.       Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the case, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 15.09.2014, till delivery of possession of the unit, would meet the ends of justice.

27.            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 him, by not delivering physical possession of the unit to him, by the opposite parties, by the promised date in the Agreement i.e. by 15.09.2014. The complainant purchased the unit, with the hope to have a roof over his head alongwith with his family members, and he also raised loan from HDFC for making part payment of sale consideration of unit, in question, but his hopes were dashed to the ground. Even the possession of unit, in question, was not offered to the complainant, till date by the opposite parties, what to speak of delivery thereof. The complainant underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the opposite parties. The compensation in the sum of Rs.10 Lacs claimed by the complainant is on the higher side. For delay in delivering possession beyond the stipulated period, the complainant has been granted interest @12% per annum till delivery of possession. The Opposite Parties have specifically stated that possession of the apartment will be handed over to the complainant on the old rates when booking was made. The complainant, in our considered opinion, has been adequately compensated by granting interest @12% per annum on the deposited amount for the delay period. In addition, he (complainant) will also get the benefit of escalation in the price of unit, in question. In these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainant, if granted, to the tune of Rs.1,50,000/-, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

28.       The next question, which falls for consideration, is, whether the complainants, in the connected complaint case No.80 of 2016, were entitled to have two car parkings side by side. The grievance to this effect, though not mentioned in the complaint, finds mention in the prayer clause only. The Counsel for the complainants stated that two car parking spaces are being allotted at different locations instead of providing the same adjacent to each other. The Counsel for the Opposite Parties stated that there was no commitment to provide the same (two car parkings) together. However, during arguments, this point was pressed by the Counsel for the complainants. The provision regarding car parking in the Agreement exists by way of Clause 12 of the Agreement. Clause 12.1 of the Agreement reads as under:-

“12.1     The covered car parking spaces conceived in the Building Plans have been apportioned among the various owners of the community spaces, commercial areas, club/recreational facility, residential apartments. In accordance with such apportionment, 2 nos. covered Parking Spaces have been allocated for exclusive use by the owner(s) of the said Apartment are hereinafter referred to as “Parking Spaces”). The aforementioned Parking Spaces shall form an indivisible and inseparable constituent of the said Apartment and they shall  not have any independent transferable entity by themselves. The Proposed Allottee shall have no rights, claims or interest whatsoever in any parking spaces other than the said Parking Spaces.’

 

Further, as per Clause 12.3, Car Parking spaces are to be marked at the time of possession. In the Agreement, there is no provision that two car parkings are to be allotted adjacent to each other. However, we expect that the Opposite Parties at the time of marking car parking space shall make an endeavor to allot two Car Parking spaces adjacent to each other, to the complainant(s).

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

30.      For the reasons recorded above, all the complaints are partly accepted, with costs, in the following manner:-

Consumer Complaint bearing No.79 of 2016, titled as Parveen Mangla Vs. Puma Realtors Pvt. Ltd. and anr. 

 

            The Opposite Parties are jointly and severally directed as under:-

 

1.       To hand over physical possession of  the unit, allotted in favour of the complainant, complete in all respects, including modular kitchen with cupboards above the slab also and provision for Split AC (fittings) in all bedrooms, drawing & dining room, to the complainant, within a period of six months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against him.
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, from 15.09.2014 to 31.07.2016, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainant  w.e.f. 01.08.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony and physical harassment, caused to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
6. To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

Consumer Complaint bearing No.80 of 2016, titled as Upvinder Singh Dhall and Anr. Vs. Puma Realtors Pvt. Ltd. and anr. 

 

            The Opposite Parties are jointly and severally directed as under:-

1.       To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, including modular kitchen with cupboards above the slab also and provision for Split AC (fittings) in all bedrooms, drawing & dining room, to the complainants, within a period of six months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against them.
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 16.03.2014 to 31.07.2016, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainants  w.e.f. 01.08.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony and physical harassment, caused to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
6. To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

Consumer Complaint bearing No.82 of 2016, titled as Deepak Saluja and Anr. Vs. Puma Realtors Pvt. Ltd. and anr. 

 

            The Opposite Parties are jointly and severally directed as under:-

1. To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, including modular kitchen with cupboards above the slab also and provision for Split AC (fittings) in all bedrooms, drawing & dining room, to the complainants, within a period of six months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against them.
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 09.02.2014 to 31.07.2016, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainants  w.e.f. 01.08.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony and physical harassment, caused to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
6. To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

 

Consumer Complaint bearing No.101 of 2016, titled as Vikas Nijhawan Vs. Puma Realtors Pvt. Ltd. and anr. 

 

            The Opposite Parties are jointly and severally directed as under:-

1. To hand over physical possession of  the unit, allotted in favour of the complainant, complete in all respects, including modular kitchen with cupboards above the slab also and provision for Split AC (fittings) in all bedrooms, drawing & dining room, to the complainant, within a period of six months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against him.
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, from 08.03.2014 to 31.07.2016, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainant  w.e.f. 01.08.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony and physical harassment, caused to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
6. To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

31.       Certified copy of this order, be placed on the file of connected cases, mentioned above.

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

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

Pronounced.

July 08, 2016.

 [DEV RAJ]

PRESIDING MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER