Chandigarh
StateCommission
CC/483/2017
Rajinder Dhupar - Complainant(s)
Versus
Puma Realtors Pvt. Ltd. - Opp.Party(s)
Paras Money Goyal Adv.
24 Aug 2018
ORDER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. | : | 483 of 2017 |
Date of Institution | : | 13.06.2017 |
Date of Decision | : | 24.08.2018 |
Rajinder Dhupar S/o Sh. Hari Chand Capt. Resident of H.No.93, Sector 7, Panchkula, Haryana.
……Complainant
V e r s u s
1. Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), having its Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh 160009 (India) through its Managing Director.
….Opposite Party No.1.
2. The Managing Director, Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Registered Office at No.5, Dhanraj Chambers, 1st Floor, Satbari, New Delhi – 220074. (Opposite Party No.2 deleted vide order dated 17.07.2017)
….. Opposite Party No.2
Argued by: Sh. Gaurav Bhardwaj, Advocate for the complainant.
Sh.Rohit Tanwar, AGM (Legal) of opposite party No.1.
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Complaint case No. | : | 691 of 2017 |
Date of Institution | : | 12.09.2017 |
Date of Decision | : | 24.08.2018 |
1. Vikas Malik S/o Sh. Omparkash Malik r/o 101 Lengkong DUA 5 – (417742) Singapore.
2. Sonia Malik W/o Sh. Vikas Malik, r/o 101 Lengkong DUA 5 – (417742) Singapore.
……Complainants
V e r s u s
1. M/s Puma Realtors Pvt. Ltd., an IREO Group Company through its Managing Director/Director/Chairman, Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh – 160009.
2nd Address of service
2. M/s Puma Realtors Pvt. Ltd., An IREO Group Company through its Managing Director/Director/Chairman, Registered Office at No.5, Dhanraj Chambers, 1st Floor, Satbari, New Delhi-110074.
3. Mr.Anupam Nagalia, Director/Chairman of M/s Puma Realtors Pvt. Ltd., An IREO Group Company, Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh – 160009.
4. Mr. Amrick Singh, Director/Chairman of M/s Puma Realtors Pvt. Ltd., An IREO Group Company, Registered Office at No.5, Dhanraj Chambers, 1st Floor, Satbari, New Delhi – 110074.
….. Opposite Parties
Argued by: Sh.Neeraj Sobti, Advocate for the complainants.
Sh.Rohit Tanwar, AGM (Legal) of the opposite parties.
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Complaint case No. | : | 729 of 2017 |
Date of Institution | : | 10.10.2017 |
Date of Decision | : | 24.08.2018 |
1. Jatinder Sarin s/o Ratta Lal Sarin, r/o H.No.3159, Sector 19-D, Chandigarh.
2. Rama Rajpal w/o Ved Rajpal, r/o H.No.1309, Sector 37-B, Chandigarh.
……Complainants
V e r s u s
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, Sarbari, New Delhi 110074 and Corporate Office at SCO No.6-8, First and Second Floor, Sector 9-D, Chandigarh-160009 (India), through its Managing Director.
2. The Directors, 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 Floor, Sector 9-D, Chandigarh 160009 (India).
….. Opposite Parties
Argued by: Ms. Narender Kaur, Advocate for the complainants.
Sh.Rohit Tanwar, AGM (Legal) of the opposite parties.
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Complaint case No. | : | 838 of 2017 |
Date of Institution | : | 13.12.2017 |
Date of Decision | : | 24.08.2018 |
1. Mr.Jaspreet Singh son of Sh. Kuldeep Singh.
2. Ms. Amarjit Kaur wife of Mr. Kuldeep Singh.
Residents of House no.2445, Sector 19-C, Chandigarh, U.T.
……Complainants
V e r s u s
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 Floor, Sector 9-D, Chandigarh-160009, through its Managing Director.
2. The Directors, 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 Floor, Sector 9-D, Chandigarh 160009 (India).
….. Opposite Parties
Argued by: Ms. Narender Kaur, Advocate for the complainants.
Sh.Rohit Tanwar, AGM (Legal) of the opposite parties.
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Complaint case No. | : | 8 of 2018 |
Date of Institution | : | 09.01.2018 |
Date of Decision | : | 24.08.2018 |
Jitender Singh s/o Late Sh. Shishpal Singh, r/o Imtech Housing B-11, Sector 39-A, Chandigarh.
……Complainant
V e r s u s
1. M/s Puma Realtors Private Limited, SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh through its Directors, Sh.Anupam Nagalia and Sh.Amrick Singh Gambhir.
2. Sh.Anupam Nagalia, Director of M/s Puma Realtors Private Limited, R/o PV-66, The Palm Springs, Golf Course Road, Sector 54, Gurgaon – 122 002.
3. Sh.Amrick Singh Gambhir, Director of M/s Puma Realtors Private Limited, R/o A-124, 2nd Floor, Fateh Nagar, New Delhi – 110 018.
….. Opposite Parties
Argued by: Sh.Savinder Singh Gill, Advocate for the complainant.
Sh.Rohit Tanwar, AGM (Legal) for the Opposite Parties.
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Complaint case No. | : | 16 of 2018 |
Date of Institution | : | 10.01.2018 |
Date of Decision | : | 24.08.2018 |
Rashim Rajpal s/o Ved Rajpal, H.No.1309, Sector 37-B, Chandigarh.
……Complainant
V e r s u s
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, Sarbari, New Delhi 110074 and Project Office IREO Rise Sector 99, Mohali, through its Managing Director.
2. Anupam Nagalia, Director, Puma Realtors Pvt. Ltd., a Company incorporated under the Companies Act, 1956 (An IREO Group Company) Project Office IREO Rise, Sector 99, Mohali.
3. Amrick Singh Gambir, Director, Puma Realtors Pvt. Ltd., a Company incorporated under the Companies Act, 1956 (An IREO Group Company) Project Office IREO Rise, Sector 99, Mohali.
….. Opposite Parties
Argued by: Ms. Narender Kaur, Advocate for the complainant.
Sh.Rohit Tanwar, AGM (Legal) of the opposite parties.
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Complaint case No. | : | 57 of 2018 |
Date of Institution | : | 07.02.2018 |
Date of Decision | : | 24.08.2018 |
1. Mohit Sharma s/o Sh. J.K.Sharma r/o 30/104, Norwood Place, Station Road, Indooroopilly 4068, Queensland, Australia.
2. Anju Bala W/o Sh.Mohit Sharma r/o 30/104, Norwood Place, Station Road, Indooroopilly 4068, Queensland, Australia.
……Complainants
V e r s u s
1. M/s Puma Realtors Pvt. Ltd., an IREO Group Company through Sh.Anupam Nagalia & Sh.Amrick Singh, Managing Director/Chairman, Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh – 160009.
2. M/s Puma Realtors Pvt. Ltd., An IREO Group Company through Sh.Anupam Nagalia & Sh.Amrick Singh, Managing Director/Chairman, Registered Office at No.5, Dhanraj Chambers, 1st Floor, Satbari, New Delhi-110074.
3. Mr.Anupam Nagalia & Sh.Amrick Singh, Managing Director/Chairman of M/s Puma Realtors Pvt. Ltd., An IREO Group Company, Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh – 160009.
4. Mr.Anupam Nagalia & Sh.Amrick Singh, Managing Director/Chairman of M/s Puma Realtors Pvt. Ltd., An IREO Group Company, Registered Office at No.5, Dhanraj Chambers, 1st Floor, Satbari, New Delhi – 110074.
….. Opposite Parties
Argued by: Sh.Neeraj Sobti, Advocate for the complainants.
Sh.Rohit Tanwar, AGM (Legal) of the opposite parties.
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Complaint case No. | : | 122 of 2018 |
Date of Institution | : | 26.03.2018 |
Date of Decision | : | 24.08.2018 |
1. Arun Kumar Goel s/o Sh. Rajinder Kishore Goel.
2. Parveen Goel w/o Arun Kumar Goel.
Both residents of Mahabir Aluminum Ltd. Plot No.SP-2/333, Flat No.A-3, Bhiwadi, District Alwar, Rajasthan.
……Complainants
V e r s u s
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, Sarbari, New Delhi 110074 and Project Office IREO Rise Sector 99, Mohali, through its Managing Director.
2. Jai Bharat, Director, Puma Realtors Pvt. Ltd., a Company incorporated under the Companies Act, 1956 (An IREO Group Company) Project Office IREO Rise, Sector 99, Mohali through its Managing Director.
3. Anupam Nagalia, Director, Puma Realtors Pvt. Ltd., a Company incorporated under the Companies Act, 1956 (An IREO Group Company) Project Office IREO Rise, Sector 99, Mohali through its Managing Director.
4. Amrick Singh Gambir, Director, Puma Realtors Pvt. Ltd., a Company incorporated under the Companies Act, 1956 (An IREO Group Company) Project Office IREO Rise, Sector 99, Mohali through its Managing Director.
….. Opposite Parties
Argued by: Ms. Narender Kaur, Advocate for the complainants.
Sh.Rohit Tanwar, AGM (Legal) of the opposite parties.
Complaints under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.
MRS. PADMA PANDEY, MEMBER
PER PADMA PANDEY, MEMBER
By this order, we propose to dispose of the aforesaid eight consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In all the complaints, the complainants have sought refund of the deposited amounts alongwith interest, compensation and litigation costs etc. At the time of arguments, on 02.08.2018, it was agreed between the contesting parties, that, in view of above, all these complaints can be disposed of, by passing a consolidated order.
2. To dictate order, facts are being taken from consumer complaint bearing No.483 of 2017 titled as Rajinder Dhupar Vs. Puma Realtors Private Limited.
3. The facts, in brief, are that the complainant was offered a plot by the opposite party in its project ‘Ireo Hamlet’, measuring 250.59 sq. yard @Rs.23,000/- per sq. ft., having total sale consideration of Rs.57,63,570/- besides EDC @Rs.1275.10 and PLC @Rs.500/- sq. yard. Due to paucity of funds, the complainant agreed to purchase the said plot alongwith his brother-in-law, namely Mohit Paul, which they purchased on 25.01.2012. Plot Buyer’s Agreement was executed between the parties on 27.10.2011 (Annexure C-1). As per statement of accounts (Annexure C-2), the complainant, in all, paid an amount of Rs.61,79,232/- to the opposite party. As per Clause 11.1 of the agreement, possession of the plot, in question, was to be delivered within 24 months from the date of agreement plus 6 months grace period, which period expired in April, 2014.
4. It was further stated as per Clause No.19 of the said Agreement, time was essence in making payment. It was further stated that the opposite party was trying to justify the delay in offering possession under the garb of Clause 11.2, which is most inadequate and meaningless considering the fact that the complainant has paid Rs.62 Lacs approximately upon which, monthly interest @12% and 15% per annum comes to Rs.62,000/- and Rs.77,500/- per month and, therefore, Clause 11.2 does not safeguard the interest of the complainant. It was further stated that after having made more than 95% of the consideration money, was expecting the completion of the project within time and the opposite party also agreed to waive off the registration charges. It was further stated that the opposite party was supposed to offer possession by April 2014 and it issued letter dated 23.06.2015 informing their readiness to offer possession. It was further stated that the opposite party offered
possession vide letter dated 29.06.2015 (Annexure C-4), which was only a paper possession as there were no promised amenities at the site. It was further stated that the opposite party did not have the completion certificate and the internal road was also not complete and the access to the project was through village Firnis. It was further stated the complainant paid off the loan and endorsement in his name being the sole owner was recorded in the records of the opposite party on 11.05.2016. It was further stated that even after lapse of 22 months from the date of issue of possession letter, the infrastructure facility was not complete.
5. It was further stated that the aforesaid acts and conduct of the opposite party, amounted to deficiency in providing service and adoption of unfair trade practice. Hence this complaint seeking refund of Rs.62,25,204/- alongwith interest @15% p.a. from the date of deposit till realization; Rs.3 Lacs as compensation and Rs.1 Lac as cost of litigation.
6. Upon notice, reply was filed by the opposite party, wherein, it took certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.34 in the Apartment Buyer’s Agreement dated 27.10.2011; that since the present complaint relates to enforcement of an agreement to sell/purchase of a residential apartment i.e. an immovable property and hence, was not covered under the Act; that the complainant did not hire any services of the opposite party, as the parties did not enter into any contract for hiring the services; that the allegations levelled in the complaint are of contractual nature and, as such, triable by Civil Court only; that this Commission has no territorial jurisdiction on account of existence of Clause 35 in the Agreement, according to which, only the Courts at Mohali and the Punjab & Haryana High Court at Chandigarh, has the exclusive jurisdiction, in the matters/disputes, arising out in respect of the unit, in question; that the complainant is not a consumer, as defined under Section 2 (1) (d) of the Act, as he is a speculator and has purchased the unit, in question, for resale, to gain profits i.e. for commercial purposes; and that the relief claimed is beyond Section 14(1)(d) of the 1986 Act.
7. On merits, it was stated that the complainant alongwith his brother-in-law Mr. Mohit Paul purchased the allotment rights of the plot, in question, from the original allottee Mr. Rajeev Sood vide Transfer/Nomination Agreement dated 19.01.2012 (Annexure OP-2) and finally endorsed in their favour on 25.01.2012. Further Mr. Mohit Paul, co-purchaser relinquished his right out of love and affection in favour of the complainant vide letter dated 10.05.2016, which was finally endorsed on 11.05.2016. It was denied that the possession of the plot was to be delivered within 24 months, as alleged. It was further stated that in terms of collective reading of Clauses 11.1, 11.2 and 11.3, the possession of the plot was to be delivered within 24 months plus six months grace period and further extended delay period of 12 months, total 42 months from the date of execution of the agreement.
8. It was further stated that, as agreed between the parties, vide Clause 11.2 of the agreement, the complainant was entitled to compensation calculated @Rs.50/- per sq. yard of the area and the same was subject to adjustment in final payment made by the complainant. It was further stated that the compensation is paid to set off the loss and not for wind fall or unjust enrichment at the cost of other. It was further stated that possession of the plot, in question, was offered to the complainant vide letter dated 23.06.2015 and the complainant showed his willingness to get the conveyance deed executed vide his letter dated 10.12.2015. It was further stated that the opposite party agreed to bear the cost of stamp duty and other expenses of registration of conveyance deed vide letter dated 17.12.2017 as a good will gesture and is still ready to honour its promise of bearing such cost. It was further stated that vide letter dated 29.06.2015, the opposite party explained for not completing the development at the site till then and it was clarified in the said letter that sector road could not be completed due to force majeure as one of the land owners has obtained injunction from the Hon’ble High Court against construction of road from his land, which was vacated. It was further stated that Sector road between sectors 98 & 99 is complete and is in operation, whereas development work on the sector road between sectors 86 & 87 and 97 & 98 is in full swing. It was further stated that letter dated 29.06.2015 is merely an up-date regarding project. It was further stated that the opposite party has obtained partial completion certificate dated 30.06.2017 from the competent authority. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite party, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
9. The parties concerned, led evidence in support of their cases.
10. We have heard the contesting parties, and have gone through the evidence, and record of all the cases, carefully.
11. First, we will deal with the objection, raised by the opposite party, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, in the Agreement, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6 SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, 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. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.
12. In view of the above, objection raised by the opposite party in this regard, being devoid of merit is rejected.
13. Another objection raised by the opposite party was that since the complainant did not buy goods and did not hire any services and is seeking enforcement of the Agreement in respect of immovable property i.e. a flat, which transaction is contractual, in nature, therefore, only a Civil Court can decide the complaint, and consumer complaint was not maintainable. It may be stated here that the complainant hired the services of the opposite party, for purchasing the plot, in question, in the manner, referred to above, on payment of sale consideration. Furthermore, the plea taken by the opposite party that there is a contract to sell a plot only, to the complainant and no services were to be provided, is falsified from its own document i.e. agreement dated 27.10.2011 (Clause 21.2 & 21.3 at pages 136 - 137) of the file, wherein it has been very clearly mentioned that it (opposite party) shall carry out the internal development with the project, which inter alia, includes laying of roads, water lines, sewer lines, electrical lines and further the opposite party shall be entitled to connect the electric, water, sanitary and drainage fittings on any additional development with the existing electric, water, sanitary and drainage fittings of the project. According to Clauses 11.1 and 11.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Party, it was to hand over possession of the plot, in question, within a period of 42 months i.e. (24 months + 6 months grace period + 12 months extended delay period), from the date of execution of the same (Agreement). Section 2 (1) (o) of the Act, defines service as under:-
“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”
From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2 (1) (o) of the Act. Similar principle of law was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Counsel for the Opposite Parties, in this regard, referred to Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711. The Hon’ble Supreme Court in Narne Construction P. Ltd. etc. etc. Vs. Union of India and ors. Etc.’s case (supra) and Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors.’s case (supra), had clearly held that the nature of transaction is covered by the expression ‘service’. In Bangalore Development Authority Vs. Syndicate Bank’s case (supra), it was the specific case of the Opposite Parties that the scheme was on ‘no profit no loss basis’, there was escalation in the price of houses by ten times and the delay had occurred on account of contractor’s fault. By no stretch of imagination, the allotment in the present case, can be said to be on ‘no profit no loss basis’. As such, Bangalore Development Authority Vs. Syndicate Bank’s case (supra), being distinguishable on facts, is of no help to the opposite party. 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 party, in this regard, being devoid of merit, must fail, and the same stands rejected.
14. The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident from Clause 32 of the Agreement, that the parties had agreed that “Hence this Agreement shall be deemed to have been executed at Chandigarh even if the Proposed Allottee has prior thereto executed this Agreement at any place(s) other than Chandigarh”, meaning thereby that the Agreement in question, was deemed to be signed/executed at Chandigarh. Furthermore, perusal of Plot Buyer’s Agreement, at Page 15 of the file, shows that the same was executed at Chandigarh. Further letters dated 23.06.2015 and 29.06.2015 (Annexures C-3 & C-4) were issued by the opposite party from its Chandigarh Office, as the same bore address of the Company as “SCO 6-7-8, First and Second Floors, Sector 9-D, Madhya Marg, Chandigarh”. Not only as above, as per Clause 28 of the Agreement, address of the Company for communication and notices is also found mentioned as “SCO 6-8, First and Second Floors, Sector 9-D, Chandigarh-160009”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
15. No doubt, in the written version, an objection was also taken by the opposite party that as per Clause 35 of the Agreement, the Courts at Mohali and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case. In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to him, to file the complaint. The submission of Counsel for the opposite party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
16. Another objection was taken by the opposite party, to the effect that since the complainant has purchased the said unit, not for his residential purposes but for commercial purpose i.e. for earning profits, after selling the same, as such, he would not fall within the definition of consumer, as defined under the Act. It may be stated here that there is nothing, on record to show that the complainant is a property dealer and deals in sale and purchase of property, in India, on regular basis. The complainant in his complaint, supported by his affidavit, has specifically stated that he was looking for a plot for himself and his family members. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316. It may also be stated here that a person may buy two or three houses/plots, if the requirement of his family cannot be met in one house/plot. In a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-
“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”
The principle of law, laid down, in the aforesaid cases is fully applicable to the present case. Even otherwise, still the complainant is seeking possession of the plot, in question. The objection raised, being devoid of any substance, stands rejected.
17. It is not in dispute that the complainant had paid an amount of Rs.62,25,204/- against total sale consideration of Rs.63,11,585.27 ps., as is evident from statement of account (Annexure C-2), at page 43 of the file.
18. Coming to the merits of the case, the complainant, in the instant case, has sought refund of the amount alongwith interest, alleging that notice of possession dated 23.06.2015 was issued to him in a hurried manner without complete development/basic amenities at the site.
19. On the other hand, the case of the opposite party, is that the complainant (Rajinder Dhupar) concealed the very crucial and material fact of his admission in letter dated 10.12.2015 that he was satisfied with the development and had also requested the opposite party to bear the cost of stamp duty, registration charges and incidental expenses for execution and registration of the Conveyance Deed. Counsel for the opposite party vehemently argued that this material fact was concealed by the complainant in the complaint. The contents of letter dated 10.12.2015 (Annexure OP-7), being relevant, are produced hereunder:-
“This is to inform you that we are ready and willing to get the Conveyance Deed executed and registered in respect of Plot No.19, IREO Hamlet, Sector 98, S.A.S. Nagar (Mohali), Punjab.
However, we would request you to waive off the delayed interest accrued on the balance Sale Consideration and adjust the delayed compensation, if any, against the balance Sale Consideration payable by us.
We would also greatly appreciate if the Company can bear the cost of stamp duty on the sale consideration, registration charges and incidental expenses for execution and registration of the Conveyance Deed in our favour. This would help us in planning early start of construction on the said Plot. We would also seek your help in getting the Building Plans approved once the same are ready.
We have also inspected the site and we are satisfied with the development carried out by the Company.
We undertake and confirm that we shall make ourselves available to for execution and registration of the Conveyance Deed in our favour within 7 days of purchase of stamp duty papers of appropriate value.”
20. The Counsel for the opposite party argued that once the complainant admitted that after inspection of the site, he was satisfied with the development carried out by the company, whatever on the site, and his request for bearing the cost of stamp duty, registration charges for execution and registration of the Conveyance Deed having been agreed to by the opposite party vide letter dated 17.12.2015 (Annexure OP-8) subject to complainant clearing all dues and outstanding payments, the complainant cannot be allowed to turn around and resile from the contents of his communication dated 10.12.2015 and seek refund, alleging that possession offered was a paper possession.
21. We are not giving any finding qua completion of development on the basis of statement made by the complainant in his letter dated 10.12.2015. It seems that the complainant made statement that he was satisfied with the development with a view to seek concession in the cost of stamp duty, registration charges and incidental charges for execution and registration of conveyance deed. The complainant has, thus, not come with clean hands and concealed this material fact viz. letter dated 10.12.2015, which has significant bearing in the instant complaint.
22. It may be stated here that Hon’ble Supreme Court of India in the case of “Kishore Samrite Vs. State of U.P. & Ors.”, Criminal Appeal No.1406 of 2012, decided on 18.10.2012, in Paras 34 and 35, interalia, held as under:-
34. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.
35. No litigant can play ‘hide and seek’ with the courts or adopt ‘pick and choose’. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy……..”
Further in S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar, 2004 (7) SCC 166, the Hon’ble Apex Court has held, interalia, as under:-
“As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it.”
Further the Hon’ble Apex Court in the matter of S.P. Chengalvaraya Naidu Vs. Jagannath, reported as 1994 AIR 853, held, interalia, as under:-
“A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.”
23. It is not in dispute that letter dated 10.12.2015 was not sent by the complainant but the complainant concealed this material fact from this Commission at the time of filing the complaint to avoid any adverse impact upon his case.
24. In view of ratio of judgments in aforesaid cases and in view of fact that the complainant did not come to the Court with clean hands, we could have dismissed the complaint but since the complainant is a poor consumer, whose hard earned money has remained stuck with the opposite parties for the last more than six years, we are refraining ourselves in doing so. In the facts and circumstances of the case, backing out by the complainant from his own letter dated 10.12.2015, is taken as rescinding of contract by him and, therefore, we allow refund of the deposited amount to the complainant, by forfeiting 10% of the sale consideration of the plot, in question, on account of complainant’s resiling from his own communication dated 10.12.2015. Accordingly, the complainant is held entitled for refund of the amount minus 10% of the sale consideration of the plot, in question, alongwith interest @10% per annum w.e.f. 10.12.2015 till the date of actual realization. The original allottee and the complainant, in all, deposited an amount of Rs.62,25,204.00, which included Rs.45,972.00 with the Opposite Party. 10% of the total sale consideration of the plot, in question, viz. Rs.63,11,585.27, shall come to Rs.6,31,158.00. The complainant is, thus, held entitled to refund of Rs.55,94,046.00 i.e. (Rs.62,25,204.00 minus (-) Rs.6,31,158.00), alongwith interest @10% p.a. from 10.12.2015 till actual realization.
25. In the facts and circumstances of the case, especially in view of concealment of material fact by the complainant, we are not granting any compensation for mental agony and harassment. However, the complainant is held entitled for costs of litigation in the sum of Rs.35,000/-.
26. Out of seven connected complaints bearing Nos.691, 729 & 838 of 2017 and 8, 16, 57 & 122 of 2018, the possession of the plot(s), in question, stood offered to the complainant(s) in Complaints bearing Nos.691 & 838 of 2017 and 8, 57 & 122 of 2018, whereas in two complaints bearing Nos.729/2017 and 16/2018, possession has not been offered to the complainants. However, in all these connected complaints, the complainants have sought refund of the deposited amount.
27. The details of date of agreement(s), due date for possession and date on which possession offered, are given in the following table:-
Complaint Case No. | Date of Agreement | Due Date for possession (on completion of 42 month’s period) | Date on which possession offered | Amount paid (Rs.) |
691/2017 | 23.08.2011
(2nd Allottee) 02.09.2011
| 22.02.2015 | 21.05.2015 | 61,41,431.00 |
729/2017 | 11.06.2013
| 10.12.2017 | Not offered | 27,24,521.00 |
838/2017 | 07.07.2011
| 06.01.2015 | 06.05.2015 | 72,89,686.00 |
8/2018 | 01.07.2011
(2nd Allottee) 04.07.2011
| 30.12.2014 | 04.05.2015 | 49,55,842.60 |
16/2018 | 25.10.2011 | 24.04.2015
(Allotment was cancelled for non-payment of installments) | Not offered | 7,46,812.00 |
57/2018 | 20.07.2011
(2nd Allottee) 23.08.2011 | 19.01.2015 | 12.05.2015 | 60,29,293.00 |
122/2018 | 08.08.2011 | 07.02.2015 | 23.11.2015 | 29,24,317.00 |
28. It may be stated here that in Complaint Case No.838 of 2017, the complainants have given similar letter as was given in Complaint Case No.483 of 2017, whereby the complainants have given their satisfaction with the development carried out by the Company. In CC/838/2017, such letter is dated 03.11.2015 (Annexure OP-5) and Annexure OP-6 is letter dated 04.01.2016 of the opposite parties, whereby they consented to the request of the complainants to bear the stamp duty and registration charges for execution and registration of Conveyance Deed for the plot, in question. In Para 11 of their complaint, the complainants have alleged that on 03.11.2015, the opposite parties called them to their office and got some documents signed by saying that signing of these documents was necessary towards the completion of formalities required for execution of the conveyance deed. The complainants did not place on record copy of letter dated 03.11.2015 alongwith their complaint for the reasons best known to them. On the other hand, the opposite parties have annexed copy of the said letter as Annexure OP-5. The complainants have signed this letter with open eyes and they cannot be heard to say that the said document was got signed from them by the complainants on false pretext. Rather, the opposite parties, at Page 3 of the preliminary objections, while referring to this letter, have extracted the satisfaction with the development carried out by the Company, given by the complainants by way of aforesaid letter dated 03.11.2015. Therefore, this complaint bearing No.838 of 2017 is also decided in the light of observations made in CC/483/2017.
29. Refund sought in the remaining complaints is on account of offer of an undeveloped plot(s(s)/project. However, in CC/16/2018, the allotment of the plot, in question, was cancelled by the opposite parties on account of nonpayment of due installments.
30. To settle the controversy in remaining connected complaints, whether the possession offered was complete and proper or not, at rest, we refer to Complaint Case No.691 of 2017 titled Vikas Malik & Anr. Vs. M/s Puma Realtors Pvt. Ltd. & Ors., wherein possession of the plot, in question, was offered vide letter dated 21.05.2015 (Annexure C-17). The Counsel for the complainants submitted that possession offered vide aforesaid letter dated 21.05.2015 was of undeveloped plot/project and there was no development at the site. Apparently, there was promise to make development and then offer/hand over possession of the plot, to the complainant.
31. Undoubtedly, the opposite parties were duty bound to provide all basic facilities like roads, sewerage, drinking water, electricity, street lights, drainage etc. There is nothing, on record, that complete development, in respect of the plot, in question, and amenities at the site as promised, as per the Agreement, were available at the site. The complainants have alleged deficiency in regard to development and approvals. It may be stated here that certain approvals such as electrical installations, NOC subject to making arrangements for suitable provision for drinking water supply and safe disposal of sullage/storm discharge and solid waste management, are inter-linked with development and basic amenities. 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.
32. 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. From letter dated 29.06.2015 of the opposite parties (Annexure C-19), which was issued a month after offer of possession, the opposite parties admitted that the following amenities were yet to be completed:-
Ø Internal roads not complete as it could be damaged on account of movement of trucks carrying heavy construction material.
Ø In process of completing the balance blacktopping work also.
Ø The work of roads would be taken up after considerable number of houses are constructed by the allottees.
Ø Only temporary electricity connection would be made available for construction.
Ø External roads, networks and infrastructure are the responsibility of Government and the opposite parties are following up with the Government to do so.
Ø Sewerage treatment plant has not been constructed and will be taken when there is adequate habitation.
Ø For construction purpose water can be purchased from any authorised vendor permitted by Panchayat, Irrigation department, GMADA etc.
Thus, the averment of the complainants that the basic amenities like roads and sewerage were not complete/developed at the site, stands corroborated from the contents of aforesaid letter. The position stated hereinafter also clearly reveals that development/amenities were not complete when possession of the plot, in question, vide letter dated 21.05.2015 was offered by the opposite parties.
33. In Memo No.5001 dated 7.8.2015 (Annexure OP-31), which is letter from the Chief Electrical Inspector to Govt. Punjab, Patiala, to M/s IREO Hamlet (Residential Township Sector 98, Mohali, it is stated that inspection of subject cited electrical installation was carried out by the Electrical Inspectorate and the same was found to be conforming to the relevant provisions of Central Electricity Authority (Measure relating to safety and Electric Supply) Regulations, 2010 and the installations were approved for commissioning but clearly, this approval was accorded after offer of possession vide letter dated 21.05.2015.
34. 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-30), after offer of possession on 21.05.2015. Further letter dated 18.05.2015 (Annexure OP-28) from Greater Mohali Area Development Authority (GMADA), informing 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……” was issued after offer of possession. As per this letter, number of other conditions were also required to be complied with by the promoter. The opposite parties have not stated whether it complied with the aforesaid conditions. Further, consent to operate an outlet for discharge of the effluent u/s 25/26 of Water (Prevention & Control of Pollution) Act, 1974 was granted to the Opposite Parties vide letter dated 05.01.2016 (Annexure OP-32) i.e. after offer of possession. It may also be stated here that the opposite parties furnished Bank Guarantee dated 22.03.2016 (Annexure OP-33) with expiry date/claim expiry date as 21.03.2021 in the sum of Rs.3,24,10,301/- to the PSPCL, after offer of possession. As such, the opposite parties had neither completed the development nor did they have all the necessary sanctions/approvals from the Competent Authorities up-till 21.05.2015 when offer of possession was made. The contention of the complainants that possession offered was not a valid and proper possession is, thus, 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 development as also without obtaining the necessary approvals.
35. 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 Plot Buyer Agreement was entered into between the parties on 23.08.2011. As per Clause 11.1 of General Clauses of the Agreement, possession of the plot, in question, was to be handed over within 24 months from the date of execution of the said Agreement with further grace period of 6 months but not later than 30 months i.e. latest by 22.02.2014. Further, as per Clause 11.2 of the Agreement, in case, possession was not offered within the stipulated period, then the opposite parties were liable to pay compensation calculated @Rs.50/- per sq. yard of the area every month until possession is actually handed over. Clauses 11.1 and 11.2 of the Plot Buyer Agreement dated 23.08.2011, being relevant, are extracted hereunder:-
“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”.
36. Since the Plot Buyer Agreement was executed on 23.08.2011, 30 months period including 6 months grace period expired on 22.02.2014. Even the extended period of 12 months, in terms of Clause 11.3 of the Agreement expired on 22.02.2015. Admittedly, possession of the plot, in question, offered to the complainant vide letter dated 21.05.2015 (Annexure C-17) was a paper possession only. The total price of the unit was Rs.63,07,713.66 and the opposite parties received an amount of Rs.61,41,430/-, which was undoubtedly hard earned money of the complainants. No plausible reason has been assigned by the opposite parties, as to why they (Opposite Parties) failed to deliver complete possession of the plot, by the date stipulated. Delay could only be condoned, under the terms and conditions of the Agreement, if there existed plausible and justified reasons. Clearly, there is delay in handing over of possession. It may be stated here that offer sent vide letter dated 21.05.2015, has been held to be a mere paper possession. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon’ble National Commission, held as under:-
“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-
“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.
The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.
It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date.
37. In the present case also, the Opposite Parties committed breach of its obligation, in not offering possession of the plot, in question, within 30 months from 23.08.2011 i.e. date of signing of Buyer’s Agreement and even after expiry of extended delay period of 12 months, on 22.02.2015. 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….”. Since the Opposite Parties failed to hand over valid possession of the plot, in question, with complete development and all basic amenities, to the complainants, even after expiry of 42 months from the execution of Plot Buyer’s Agreement, 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, the complainants are entitled to refund of the deposited amount and by not offering possession of the unit, in question, within the stipulated period and during extended delay period and by not refunding the deposited amount, the Opposite Parties was deficient in rendering service.
38. It is to be further seen, as to whether, interest, on the amount to be refunded can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.61,41,430/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for its 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 installments. It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainants are held certainly entitled to get refund of the amount deposited by them, to the tune of Rs.61,41,430/-, alongwith interest @13% p.a. (simple). However, since rights in the plot were assigned in favour of the complainants on 02.09.2011, in view of ratio of judgment in case titled ‘Darbara Singh and ors. Vs. Emaar MGF Land Limited and Ors.’, Complaint Case No.147 of 2016 decided by this Commission on 22.08.2016, on the amount(s) paid by the previous allottee up-to 02.09.2011, interest shall be payable w.e.f. 02.09.2011.
39. Under these circumstances, in this complaint No.691/2017, seeing the amount paid by the complainants, compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.2 lac (Rupees Two Lakhs only), if granted, would be adequate to serve the ends of justice.
40. In view of observations made in the preceding paragraphs, the complainants, in Complaint Cases bearing Nos.729/2017, 8/2018, 57/2018 and 122/2018 are held entitled to refund of the deposited amounts alongwith interest @13% p.a. (simple) [from the respective dates of deposits in CC/729/2017 & 122/2018] and [in CC/8/2018 & CC/57/2018, with effect from the dates of transfer/Endst. for the amount(s) paid uptil that date by the previous allottee and from the respective dates of deposits, in respect of payments made w.e.f. the date of transfer/Endst. onwards].
41. In Complaint Case No.16 of 2018, the complainant, namely, Rashim Rajpal after allotment of the plot on 05.05.2011, in question, paid only an amount of Rs.7,46,812/- i.e. [Rs.6,50,000.00 as booking amount on 09.05.2011 + Rs.96,812.00 on 11.08.2011] and did not anything thereafter. Plot Buyer’s Agreement was executed on 25.10.2015 and possession of the plot, in question, was to be offered by 24.04.2015.
42. In this case, the Opposite Parties cancelled the allotment of the plot, in question, vide letter dated 22.01.2013 (Annexure C-16) on account of failure of the complainants to pay the due amount despite numerous reminders. While cancelling the allotment, out of Rs.7,46,812.00 paid by the complainant, the Opposite Parties showed the refundable amount to be Rs.(-)1,93,795.19 (NIL), after deducting Rs.7,55,100.00 (15% of sale consideration) as earnest money and Rs.1,85,507.19 as interest.
43. No doubt, as per Clause 6, earnest money was 15% and as per Clause 19.3 of Agreement, the Opposite Parties have made themselves, entitled to forfeit earnest money, out of the deposited amount, in case of cancellation of the unit, in question, yet, in view of principle of law settled by Hon’ble National Commission in cases referred to hereinafter, an amount exceeding 10% of the total price of the unit/property, cannot be forfeited by the Opposite Parties; it being unreasonable, unless they show that they had suffered loss to that extent of the amount to be forfeited by them. In DLF Ltd. Vs. Bhagwanti Narula, Revision Petition No.3860 of 2014 decided by Hon’ble National Commission on 06.01.2015, it was held that in the absence of evidence of actual loss, forfeiture of any amount exceeding 10% of the sale price cannot be said to be a reasonable amount. The aforesaid observation of Hon’ble National Commission was recorded taking note of decision of Hon’ble Supreme Court of India in Maula Bux Vs. Union of India, 1969 (2) SCC 544 and Shree Hanuman Cotton Mills &Ors. Vs. Tata Air Craft Ltd., 1969 (3) SCC 522and Satish Batra Vs. Sudhir Rawal, (2013) 1 SCC 345..
44. In DLF Universal Limited Vs. Nirmala Devi Gupta, Revision Petition No.3861 of 2014 decided on 26.08.2015, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in Paras 10 and 11 of its order, held that the Revision Petitioner was not entitled to charge interest as non-refundable amount on the subsequent installments in the wake of cancellation of plot. Paras 10 and 11 of the order read as under:-
“10. We have now to consider whether the forfeiture amount mentioned in the letter of cancellation under the head “earnest money” and “non-refundable advance” was justified or not. It has been stated in the said letter that a sum of Rs.15,57,781.25ps. was being forfeited as earnest money. In the plot-buyers’ agreement, however, this amount has been shown as Rs.14,85,747/-. It is to be seen, however, whether the OP DLF was within its rights to treat 15% of the total price as earnest money of the plot. In a case recently decided by this Bench in “DLF Limited vs. Bhagwanti Narula,” RP No. 3860 of 2014, decided on 06.01.2015, we have taken the view that an amount exceeding 10% of the total price of the property cannot be forfeited by the seller as earnest money being unreasonable, unless the OP can show that it had suffered loss to the extent the amount was forfeited by it. Applying the same principle in the present case as well, it is held that the OP DLF was competent to forfeit only 10% of the total amount of the plot in question as earnest money. Since the total value of the plot including Preferential Location Charges (PLC), is Rs.99,04,986.10ps. as already indicated, 10% of the earnest money comes out to be Rs.9,90,500/-
11. In so far as interest on delayed payments, stated to be non-refundable amount in the agreement is concerned, the OP deducted a sum of Rs.3,65,479.25ps in the cancellation letter. It is observed in this regard that the complainant made payments of a sum of Rs.12 lakh at the time of initial booking and then made two further payments in the last week of June 2011. Since no further payments were made, as per the terms and conditions of the allotment as contained in Para 65 of the plot-buyers’ agreement, the OP was well within its rights to initiate the process of cancellation of the plot after the first default in making payment of an instalment. In its own wisdom, if it decided not to do so immediately, it is not entitled to charge interest as non-refundable amount on the subsequent instalments in the wake of cancellation of plot. The letter of cancellation dated 23.05.2012 makes it clear that the plot-buyers’ agreement if executed, stood cancelled and the allottee shall not have any lien or right on the said property. It is held, therefore, that the OP cannot deduct a sum of Rs.3,65,479.25ps as non-refundable amount from the money deposited by the complainant.”
Further, the Hon’ble National Commission in case titled Shri Harjinder S. Kang Vs. M/s Emaar MGF Land Ltd., Consumer Complaint No.482 of 2014 decided on 04.07.2016, in Para 13, held as under :-
“13. The case of the opposite party is that as per Clause 2(f) of the Buyers’ Agreement, extracted hereinabove, 15% of the total sale price constitutes the Earnest Money which they were entitled to forfeit. However, it has been held by this Commission in DLF Ltd., Vs. BhagwantiNarula, Revision Petition No.3860 of 2014, decided on 06.1.2015, that an amount exceeding 10% of the total price of the property cannot be forfeited as Earnest Money unless the opposite party can show that it has suffered loss to the extent of the amount actually forfeited by it. Applying the principle laid down in the above referred decision of this Commission, the opposite party could have forfeited only a sum of Rs.12,77,475/- from the amount paid to it by the complainant. The balance amount of Rs.71,97,275/- (84,74,750/- - 12,77,475/-) was required to be refunded to the complainant, which the opposite party has failed to do.”
45. The aforesaid judgments clearly lay down that not more than 10% of the earnest money can be forfeited. Once the Agreement stood rescinded by the complainant, the opposite parties, after forfeiting 10% of sale consideration, ought to have refunded balance amount to him (complainant), but they failed to do so and on the other hand, have been utilizing the same for their own benefit.
46. Since, the opposite parties have retained the money even for the last more than two years after cancellation on 22.01.2013, the complainants are entitled to refund as per settled principle of law. Undoubtedly, the complainant has suffered immensely by not getting refund.
47. It is, therefore, held that the opposite parties could forfeit an amount to the extent of 10% of the sale consideration i.e. Rs.5,36,123.00 (10% of sale consideration of Rs.53,61,230.14) out of the deposited amount of Rs.7,46,812.00. Thus, forfeiture of a sum of Rs.5,36,123.00 is adequate enough to compensate the Opposite Parties, on account of loss, if any, including brokerage charges.
48. In view of above, out of the total deposited amount of Rs.7,46,812.00, the opposite parties could forfeit a sum of Rs.5,36,123.00 only and the balance amount was refundable to the complainants. As such, the complainant was entitled to the refund of an amount of Rs.2,10,689.00 i.e. [Rs.7,46,812.00 minus (-) Rs.5,36,123.00], alongwith interest @13% p.a. (simple) from the date of cancellation i.e. 22.01.2013. Since there was default in making payment of due installments on the part of the complainant, he is not entitled to any compensation on account of mental agony and physical harassment.
49. For the reasons, recorded above, all the complaints bearing Nos.483, 691, 729 & 838 of 2017 and 8, 16, 57 & 122 of 2018 are partly accepted, with costs in the following manner.:-
Complaint Case No.483 & 838 of 2017
50. The opposite parties, in each of these cases, are, jointly and severally, held liable and directed as under:-
(i) To refund the amount of Rs.55,94,046.00 (in CC/483/2017) & Rs.65,60,717.00 (in CC/838/2017), to the complainant(s), alongwith interest @10% p.a. (simple) with effect from 10.12.2015 & 03.11.2015 respectively till realization, within a period of 45 days, from the date of receipt of a certified copy of this order.
(ii) To pay cost of litigation, to the tune of Rs.35,000/-, in each case, to the complainant(s) within a period of 45 days from the date of receipt of a certified copy of the order.
(iii) In case, the payment of amount(s), mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount(s) mentioned in Clause (i) above, with interest @12% p.a. simple, w.e.f 10.12.2015 & 03.11.2015 respectively till realization and amount(s) mentioned in Clause (ii) above, with interest @10% p.a. (simple) from the date of filing the complaint(s) till realization.
Complaint Case No.691 of 2017
51. The Opposite Parties are, jointly and severally, held liable and directed as under:-
(i) To refund the amount of Rs.61,41,430/- to the complainants, alongwith interest @13% p.a. (simple), with effect from 02.09.2011 for the amount(s) paid uptil 02.09.2011 by the previous allottee and from the respective dates of deposits, in respect of payments made w.e.f. 02.09.2011 onwards, within a period of 45 days, from the date of receipt of a certified copy of this order.
(ii) To pay an amount of Rs.2,00,000/-, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainants, within a period of 45 days from the date of receipt of a certified copy of the order.
(iii) In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% p.a. (simple), from the date of default, till realization and amount(s) mentioned in Clause (ii) above, with interest @13% p.a. (simple) from the date of filing the complaint till realization.
Complaint Case No.729 of 2017 & 122 of 2018
52. The Opposite Parties are, jointly and severally, held liable and directed as under:-
(i) To refund the amounts of Rs.27,24,521.00 (in CC/729/2017) & Rs.29,24,317.00 (in CC/122/2018) to the complainant(s), alongwith interest @13% p.a. (simple), from the respective dates of deposited, within a period of 45 days, from the date of receipt of a certified copy of this order.
(ii) To pay an amounts of Rs.1,00,000/-, in each case, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/-, in each case, as cost of litigation, to the complainant(s), within a period of 45 days from the date of receipt of a certified copy of the order.
(iii) In case, the payment of amount(s), mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount(s) mentioned in Clause (i) above, with interest @15% p.a. (simple), from the date of default, till realization and amount(s) mentioned in Clause (ii) above, with interest @13% p.a. (simple) from the date of filing the complaint till realization.
Complaint Case No.8 of 2018
53. The Opposite Parties are, jointly and severally, held liable and directed as under:-
(i) To refund the amount of Rs.49,55,842.60 to the complainant, alongwith interest @13% p.a. (simple), with effect from 04.07.2011 for the amount(s) paid uptil 04.07.2011 by the previous allottee and from the respective dates of deposits, in respect of payments made w.e.f. 04.07.2011 onwards, within a period of 45 days, from the date of receipt of a certified copy of this order.
(ii) To pay an amount of Rs.1,50,000/-, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order.
(iii) In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% p.a. (simple), from the date of default, till realization and amount(s) mentioned in Clause (ii) above, with interest @13% p.a. (simple) from the date of filing the complaint till realization.
Complaint Case No.16 of 2018.
54. In this case, the opposite party is held liable and directed as under:-
(i) | The Opposite Party is directed to refund the amount of Rs.2,10,689/-, to the complainant, alongwith interest @13% per annum (simple), from the date of cancellation viz. 22.01.2013. |
(ii) | The Opposite Party is also directed to pay Rs.35,000/- to the complainant as cost of litigation. |
(iii) | The amounts mentioned, in Clauses (i) and (ii) above, shall be paid, by the Opposite Party, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, it shall pay penal interest @15% per annum, on the amount mentioned in Clause (i) above from the date of cancellation viz. 22.01.2013, till realization and rate of interest i.e. @13% per annum on the amount mentioned in Clause (ii) above from the date of default till realization. |
Complaint Case No.57 of 2018
55. The Opposite Parties are, jointly and severally, held liable and directed as under:-
(i) To refund the amount of Rs.60,29,293/- to the complainants, alongwith interest @13% p.a. (simple), with effect from 23.08.2011 for the amount(s) paid uptil 23.08.2011 by the previous allottee and from the respective dates of deposits, in respect of payments made w.e.f. 23.08.2011 onwards, within a period of 45 days, from the date of receipt of a certified copy of this order.
(ii) To pay an amount of Rs.2,00,000/-, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainants, within a period of 45 days from the date of receipt of a certified copy of the order.
(iii) In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% p.a. (simple), from the date of default, till realization and amount(s) mentioned in Clause (ii) above, with interest @13% p.a. (simple) from the date of filing the complaint till realization.
56. However, it is made clear that in case, the complainant(s) has availed loan facility from any financial institution(s), such an institution(s) shall have the first charge on the amount(s) payable, to the extent, the same is due against the complainant(s).
57. Certified copy of this order be also placed in the files of connected complaints bearing No.691, 729 & 838 of 2017 and 8, 16, 57 & 122 of 2018.
58. Certified Copies of this order be sent to the parties, free of charge.
59. The file be consigned to Record Room, after completion.
Pronounced.
24.08.2018.
[JUSTICE JASBIR SINGH (RETD.)]
PRESIDENT
[PADMA PANDEY]
MEMBER
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