Chandigarh

StateCommission

CC/690/2016

Shima Saggar - Complainant(s)

Versus

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

Paras Money Goyal, Adv.

09 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	690 of 2016
Date of Institution	:	14.10.2016
Date of Decision	:	09.02.2017

 

Shima Saggar wife of Shri Sarbjit R. Saggar, resident of House No.2237, Sector 48-C, Chandigarh, Correspondence Address: #436, Block A, Sarita Vihar South, New Delhi – 110076.

……Complainant

V e r s u s

1. Puma Realtors Private Limited, 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 Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Registered Office at No.5, Dhanraj Chambers, 1st Floor, Satbari, New Delhi-110074.

….. Opposite Parties.

Argued by: Sh. Paras Money Goyal, Advocate for the complainant.

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

                  Opposite Party No.2 not served, in view of statement given by Counsel for Opposite Party No.1 on 18.10.2016.

 

Complaint case No.	:	544 of 2016
Date of Institution	:	02.09.2016
Date of Decision	:	09.02.2017

 

Mrs. Nirmal Milkha Singh, Aged _ Years, W/o Sh. Milkha Singh, Resident of House No.725, Sector 8-C, Chandigarh.

 

……Complainant

V e r s u s

1. Puma Realtors Pvt. Limited, (An IREO Group Company) through its Managing Director, IREO Campus, Sector 59, Near Behrampur, Gurgaon

Second Address:

Puma Realtors Pvt. Ltd., (An IREO Group Company) Through its Managing Director, Corporate Office at SCO No.6-8, First and Second Floor, Sector 9-D, Chandigarh – 160009.

2. The Managing Director, Puma Realtors Pvt. Limited, IREO Campus, Sector 59, Near Behrampur, Gurgaon. (Name of Opposite Party No.2 deleted vide order dated 06.09.2016).

….. Opposite Parties.

Argued by: Sh.Rajbir Singh Guron, Advocate for the complainant.

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

                  Name of Opposite Party No.2 deleted vide order dated 06.09.2016.

 

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

 

 

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

               MR. DEV RAJ, MEMBER.

               MRS. PADMA PANDEY, MEMBER

 

PER MR. DEV RAJ, MEMBER

              The facts, in brief, are that the complainant hales from Chandigarh and is presently posted in New Delhi and working with Tata Tele Service Limited as Senior Manager, Customer Service. She did not own any residential accommodation house/flat in Mohali in her name and, as such, always dreamt of owning a residential accommodation of her own where she could reside with her family. The complainant, when as per her requirements, requested the sales staff of Opposite Party No.1 to provide a flat on the ground floor with a private garden, IREO sales staff apprised her that a flat at ground floor is available. The complainant was offered a flat in Gardenia Block – A having super area of 1652 Sq. ft. with 2 parking spaces, Apartment No.2, Category 3B2T-B, Ground Floor. The complainant purchased the said flat vide Apartment Buyer’s Agreement dated 01.03.2011 (Annexure C-1) at total consideration money of Rs.53,42,120/-. The complainant was also made liable for making payment of external development charges etc. and IFMS. It was further stated that out of around 450 flats, there were only 28 flats on the ground floor with access to private garden. The complainant also opted for loan of Rs.35 Lacs from HDFC Bank Ltd. towards part payment of the flat, in question, and is paying EMI of Rs.65,000/- per month.  The complainant had paid an amount of Rs.17 Lacs approximately out of her savings and, in all, she paid an amount of Rs.51,86,647/- against the total sale consideration of Rs.53,42,129/-, as reflected in account statement (Annexure C-2).

2.          As per Clause 13.3 of the Agreement, possession of the flat was to be delivered by Opposite Party No.1 within 30 months from the date of the Agreement, which stood expired in August, 2013. As per the complainant, possession has not been delivered till date and, as such, there is willful and intentional delay of more than 37 months from the cut-off date for offering the 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.7.50 per sq. ft. per month, which came to be Rs.11,715.00 per month. It was further stated that Opposite Party No.1 was trying to justify the delay in offering possession under the garb of Clause 13.4, which is most inadequate and meaningless considering the fact that the complainant has paid Rs.52 Lacs approximately upon which, monthly interest @15% and 12% per annum comes to Rs.65,000/- and Rs.52,500/- respectively and, therefore, Clause 13.4 does not safeguard the interest of the complainant. It was further stated that after having made more than 95% of payment, Opposite Party No.1 failed to offer/deliver possession of the apartment, in question till date. It was further stated that the builder, namely, L & T, to whom the project had been entrusted for construction, had withdrawn and some local builder, namely, M/s Akalia Constructions has been engaged, as per 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, Opposite Party No.1 had offered various amenities viz. multipurpose hall, swimming pool, gym, badminton and basket ball courts, kids play area with seesaws, baby slides, sandpit, jogging tracks, which facilities have not been started to be developed in the project. It was further stated that in order to avoid legal claims and delayed charges, Opposite Party No.1 had issued letter dated 31.12.2015 whereby possession was being started to be offered in partial without the amenities. It was further stated that after lapse of more than 8 months of the said letter, still the possession was not offered. It was further stated that Opposite Party No.1 unilaterally withdrew the garden, which was initially offered and which was the prime basis for the purchase of the property in addition to ground floor facilities and sunlight in the back-yard. It was further stated that although private garden was part of the approved layout in the drawings, but the ground floor flat drawing did not have any access to the garden area. It was further stated that Opposite Party No.1 has unilaterally constructed approximately 68 flats over existing towers thereby causing lot of inconvenience to the complainant and, as such, additional construction shall put burden on the existing common amenities. It was further stated that as per Annexure-I, annexed to the Agreement, Opposite Party No.1 has taken upon itself to provide modular kitchen and its 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 acts of Opposite Party No.1 amounted to deficiency, in rendering service and indulgence into unfair trade practice.

4.          Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of Opposite Party No.1, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to Opposite Party No.1 to hand over possession of the flat, in question, complete in all respects, with all amenities including complete modular kitchen i.e. lower cupboards as well as upper cupboards with modular fittings & for providing the ACs provision in all the rooms; pay compensation for delayed possession as per Clause 13.4 of the Agreement, alongwith interest @15% per annum; Rs.10 Lacs as compensation for not providing private garden and on account of harassment and mental agony;  and Rs.50,000/- as litigation charges.

5.          Opposite Party No.1, in its written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.34 in the Apartment Buyer’s Agreement dated 01.03.2011; that since the present complaint related to enforcement of an agreement to sell/purchase of a residential apartment i.e. an immovable property and hence, was not covered under Act; that the allegations being of contractual nature were triable in a Civil Court; that the complainant did not hire any services of Opposite Party No.1, as the parties did not enter into any contract for hiring the services; that the complainant did not book the apartment for her personal use but for investment/commercial purpose; that the complainant not only booked the apartment, in question but she and her family had booked three more properties; that this Commission has no territorial jurisdiction on account of existence of Clause 36 in the Agreement and that the relief claimed is beyond Section 14(1)(d) of the  1986 Act. 

6.          On merits, it was stated that the total sale consideration price agreed to be paid by the complainant was Rs.52,81,319/-. It was further stated that the complainant vide clause 2 of the application, agreed to pay the applicable registration amount and stamp duty, revised/enhanced EDC, Service Tax, GST or any other 3^rd party/statutory taxes, fees, charges etc. as may be applicable. It was further stated that the complainant was under contractual obligation to pay the consideration price of the apartment in advance and it was her sole prerogative to avail home loan, to which Opposite Party No.1 was not privy. It was further stated that the total sale consideration agreed to be paid by the complainant was Rs.54,74,451/- and not Rs.53,42,129/-. It was further stated that at the time of execution of agreement, the applicable service tax was @2.57% but later the same was revised from time to time and the complainant agreed to pay the revised service tax. It was further stated that vide letter dated 12.04.2012, the complainant was informed about the revision in the service tax from 2.57% to 3.09%. It was further stated that as on date, the total price of the apartment, in question, would be much more than Rs.54,74,451/-. It was further stated that charges towards EDC were already included in the aforesaid amount of Rs.54,74,451/-. It was further stated that Opposite Party No.1 is developing the site and constructing apartments as per the Agreement and applied for occupation certificate vide application dated 11.08.2016, which is likely to be issued by the competent authority very soon.

7.          It was further stated that apart from 30 months period in handing over possession of the apartment, Opposite Party No.1 was also entitled to 180 days grace period and as, such, the period to offer possession was to travel beyond 30 months. It was further stated that the building plans were approved by the competent authorities on 18.01.2012 and that being so the period to offer possession of the apartment was to reckon from 18.01.2012 and not from any prior date. It was further stated that the delay compensation amount was to be calculated @Rs.7.50 per sq. ft. of the super area and the same was to be adjusted or reduced from the last & final installment at the time of offer of possession. It was further stated that it was nowhere agreed that construction would be done by L&T or any other else company. It was further stated that L&T company had carried out majority of the development work but having found delay on the part of the said construction company, M/s Akalia Constructions (a sub-contractor of L&T) was appointed for finishing works of the Juniper Block & Firangipani Block only and not the Gardenia Block where the complainant was allotted apartment. It was further stated that the complainant misrepresented the update letter dated 30.12.2015 sent by Opposite Party No.1. It was further stated that Opposite Party No.1 never proposed to offer possession of the apartment without completing the amenities. It was further stated that Opposite Party No.1 is in process of obtaining approvals for additional areas, as agreed under Clauses 9.10 (in fact 10.10) and 21.3 (in fact 22.3) of the Agreement. It was further stated that Opposite Party No.1 shall offer the possession of the apartment, in question, along with the amenities as agreed under the Agreement.

8.          It was further stated that it was nowhere agreed under the Agreement that any private green, over and above the super area of the apartment, in question, was sold to the complainant. It was further stated that it was nowhere agreed that modular kitchen comprising of both upper and lower portion would be provided. It was further stated that there was no agreement to provide Split AC fittings in all the rooms, rather on the contrary, said Agreement provides for provision for Split AC. It was further stated that Opposite Party No.1 has made provision for ACs in all the rooms. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

9.         On 18.10.2016, Sh. Ramnik Gupta, Advocate, who appeared for Opposite Party No.1 only, did not appear on behalf of Opposite Party No.2 - Managing Director of the Company, stating that since no post of Managing Director existed in the Company, therefore, there was no necessity to serve Opposite Party No.2 or file reply on its behalf.

10.        The complainant filed rejoinder, wherein she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Party No.1.

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

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

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

14.        It is evident, on record, that the complainant was allotted Apartment No.001, Category 3B2T-B on Ground Floor Tower, “Gardenia Block A”, in the project known as “Ireo Rise”, situated in Sector 99, SAS Nagar, Mohali having tentative super area of 1562 sq. ft. (145.11 sq. mtrs.) together with 02 nos. parking spaces, forming indivisible part thereof and Apartment Buyer’s Agreement was executed between the complainant and Opposite Party No.1 on 01.03.2011 (Annexure C-1). The basic sale price of the unit was Rs.51,39,060/- besides External Development Charges (EDC) Rs.1,56,200/- and IFMS charges Rs.46,860/-. Thus, the total sale consideration of the unit, in question, including service tax was Rs.53,42,120/-. The payment against the aforesaid unit was to be regulated as per Payment Plan, Annexure IV (at Page 57 of the file). The complainant made payment in the sum of Rs.51,86,647.00 as is apparent from statement of accounts as on 12.09.2016 (Annexure C-2). The building plans of the IREO Rise were approved on 18.01.2012 and in terms of Clause 13.3 of the Agreement, 30 months period for handing over possession, thus, expired on 17.07.2014. Admittedly, possession has not been offered/delivered to the complainant by Opposite Party No.1. Action of Opposite Party No.1 in raising construction/floors on the tower, where the apartment allotted to the complainant is situated, is as agreed under Clauses 10.10 and 22.3 of the Agreement.

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

16.           It was argued by counsel for Opposite Party No.1 that in the face of existence of arbitration clause No.34 in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

25.        The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

26.        To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

27.                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

28.      Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

29.       In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

 “8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

30.     Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

31.        Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

32.        We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

33.        The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

34.        Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

35.     In  view of the above, the plea taken by the opposite party, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.”

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

17.        To defeat claim of the complainant, the next objection raised by Opposite Party No.1 was that since the complainant had purchased the unit, in question, for investment/commercial purpose i.e. for resale, as and when there was escalation in the prices of real estate, as such, she would not fall within the definition of consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. It was stated that the husband of the complainant has purchased a flat in the project ‘Ireo Hamlet’ and he also has allotment rights in an apartment purchased in 2012 in   the  project ‘ Ireo  Rise’  alongwith  her  sister-in-law.

It was further stated that apart from above properties, the complainant alongwith her husband and father-in-law has also purchased a SCO in the project ‘Ireo Hub’. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. The complainant in Paras 1 and 2 of her complaint had already disclosed the particulars of all the above properties, which have been owned by her husband, father-in-law and sister-in-law. She has also clearly averred that as they have been blessed with two sons and wanted to purchase two properties for them, her husband purchased one plot in IREO Hamlet and also purchased one bed room flat in re-sale in the project of Opposite Party No.1 to support his handicapped sister at later stage of life. The complainant has also clearly stated that her father in law had retired from Bank and he purchased SCO plot in resale in the project of Opposite Party No.1 to start something of his own. Therefore, clearly, the complainant purchased the unit, in question, for residential purposes. The facts of case titled ‘Mehmooda Sheikh Vs. M/s Distinct Infrastructure Ltd. & 3 Ors’, Revision Petition No.2962 of 2015 decided by National Commission on 14.3.2016 alongwith connected Revision Petitions Nos.2963 of 2015 to 2970 of 2015, reliance whereon has been placed by the Counsel for Opposite Party No.1, are distinguishable as in that case, the complainants were allotted nine plots. It may be stated here that in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited”, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or hand purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

 

The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Party No.1, in written reply, therefore, being devoid of merit, is rejected.  

18.        Another objection raised by Counsel for Opposite Party No.1 was that since the complainant did not buy goods and did not hire any services, and was seeking enforcement of the Agreement in respect of immovable property, therefore, only a Civil Court can decide the complaint, and consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of Opposite Party No.1, for purchasing the unit, 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 Opposite Party No.1, it was to hand over possession of the apartment, in question, within a period of thirty months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment of the preconditions, whichever is later (commitment period).  Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

 

 

 

19.        From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act provides an alternative remedy. Even if, it is assumed that the complainant has remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by her, as she falls within the definition of ‘consumer’, as stated above. In this view of the matter, the objection of Opposite Party No.1, in this regard, being devoid of merit, must fail, and the same stands rejected.

20.        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 her. In the instant case, it is evident from Clause 33 of the Agreement, that the parties had agreed that “Hence this Agreement shall be deemed to have been executed at Chandigarh even if the Proposed Allottee has prior thereto executed this Agreement at any place(s) other than Chandigarh”, meaning thereby that the Agreement in question, was deemed to be signed/executed at Chandigarh. Not only this, email dated 31.12.2015 (Annexure C-4) was sent by Opposite Party No.1 from its Customer Care Office, Chandigarh bearing Email ID as

21.        No doubt, in the written version, an objection was also taken by Opposite Party No.1, that as per Clause 36 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.

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

23.        The next question, which falls for consideration, is, as to whether the construction of approximately 68/70 flats over the existing tower(s) by Opposite Party No.1 is at the cost of existing common facilities/amenities and against the agreed terms and conditions. Relevant clauses 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.”

 

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

24.        The next question, which falls for consideration, is, as to whether Opposite Party No.1, by not providing Split AC provision in all rooms and complete modular kitchen, was deficient in rendering service. As per Annexure I, Opposite Party No.1 was to make provision for Split AC and modular kitchen. The provision and specifications, so mentioned in Annexure-I appended to the Agreement, at Pages 53 and 54 of the file, qua the aforesaid two facilities, are extracted hereunder:-

 

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

 

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

25.        The next question, which falls for consideration, is, as to whether the complainant is entitled to the facility of private garden or access to the garden area, as alleged. The complainant has stated in her complaint that private garden was a part of approved layout drawings but the ground floor drawing did not show any access to the garden area. On the other hand, the case of Opposite Party No.1 is that in terms of Clause 3.6 of the Agreement, it was only the specific area that was agreed to be sold/transferred/conveyed under the Agreement. The definition of ‘Common Areas’ in the Agreement, to which the complainant, would have access, does not include ‘Private Greens/Garden”. Further the super area of the apartment, in question, would be the sum of specific area of the apartment and the indivisible pro-rata

share of the said apartment in the common areas up-to its periphery (excluding the areas retained in the ownership of the Company). There is no mention of ‘Private Greens’ in the Agreement. When no such facility of ‘Private Greens’ was ever committed to the complainant, question of giving the benefit of such facility to the complainant would never arise. No cogent evidence has been led by the complainant to substantiate her averment that any promise was made by Opposite Party No.1 to the complainant to have any access to the Private Greens/garden. There is no mention in the complaint whether any consideration was paid by the complainant for the alleged facility of Private Greens/garden to Opposite Party No.1 or the complainant ever paid towards the same subsequently. Thus, when the complainant did not pay anything towards the facility viz. Private Greens/garden, which was never promised by Opposite Party No.1 or mentioned in the Agreement, the complainant cannot be granted the said benefit. Similar view was taken by this Commission in Consumer Complaint No.81 of 2016 titled ‘Ritesh Trikha & Anr. Vs.  Puma Realtors Pvt. Ltd. & Anr.’, decided on 15.07.2016. Therefore, this averment of the complainant, being devoid of any substance, stands rejected.

26.        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 Opposite Party No.1, it was liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment  of   the   preconditions   whichever   is   later (commitment period). The building plans were approved on 18.01.2012 as is evident from Annexure OP-17. Computing 30 months from 18.01.2012, commitment period for handing over possession was up-to 17.07.2014. On account of force majeure circumstances, referred to in the Agreement, Opposite Party No.1 was entitled to advantage of 180 days grace period after the expiry of commitment period to allow for unforeseen delays in obtaining the Occupation Certificate etc. from the Competent Authority. In the instant case, Opposite Party No.1 applied for the Occupation Certificate vide application dated 11.08.2016 (Annexure OP-16) i.e. after expiry of 180 days grace period and the same is still awaited. Opposite Party No.1 has 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 to the complainant, even after expiry of extended delay period of 12 months, or by the date of filing the instant complaint, or even till date, for want of basic amenities at the site despite the fact that 95% of the sale consideration i.e. Rs.51,86,647/-  out of Rs.54,74,451/-, has been paid by the complainant. The complainant has also placed on record email dated 31.12.2015 (Annexure C-4), whereby Opposite Party No.1 informed her that all the amenities mentioned in the said letter shall be completed and made available for the residents by the time Opposite Party No.1 complete the handover for all the apartments. It was further stated in this letter as under:-

“We anticipate to start offering of possession before the end of June 2016 and the handover shall be in a phase wise manner.”

Opposite Party No.1 failed to abide by its commitment to offer possession of the unit, in question, by the end of June 2016. The complainant cannot be made to wait indefinitely. No doubt, Opposite Party No.1 has admitted in its written statement that it is in process of obtaining the occupation certificate and possession, complete in all respects, of the apartment, in question, shall be handed over in near future, yet, it failed to place, on record, any cogent and convincing evidence, with regard to date by which construction of the unit is going to be complete. Opposite Party No.1 was duty bound to hand over possession within 30 months i.e. by 17.07.2014. Opposite Party No.1 has not yet received the occupation certificate. Counsel for Opposite Party No.1 could not give any firm date, by which, Opposite Party No.1 would be handing over possession. Clearly there is delay in delivering possession. By making a misleading  statement, that possession of the unit, was to be delivered within the maximum period of 30 months from the date of approval of building plans and by not abiding by the commitment made, despite payment of around 95% payment by the complainant, it (Opposite Party No.1) was 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.

27.             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.

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

28.        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 Opposite Party No.1 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.

29.        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. 18.07.2014, till delivery of possession of the unit, would meet the ends of justice.

30.             The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to her, by not delivering physical possession of the unit to her, by Opposite Party No.1,    by the promised date in the Agreement i.e. by 18.07.2014. The complainant purchased the unit, with the hope to have a roof over her head alongwith with her family members, and she also raised loan from HDFC Bank Ltd., for making part payment of sale consideration of unit, in question, but her hopes were dashed to the ground. Even the possession of unit, in question, has not been offered to the complainant, till date by Opposite Party No.1, 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 Opposite Party No.1. The compensation in the sum of Rs.10 Lacs claimed by the complainant is highly exaggerated. For delay in delivering possession beyond the stipulated period, by granting interest @12% per annum on the deposited amount till delivery of possession, the complainant, in our considered opinion, has been adequately compensated. In addition, she (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/-.

31.        In the connected Consumer Complaint No.544 of 2016 titled ‘Mrs. Nirmal Milkha Singh Vs. Puma Realtors Private Limited’, relating to the same project i.e.IREO Rise, no doubt the complainant prayed for refund of the deposited amount i.e. Rs.39,19,330/- alongwith other reliefs but, subsequently, on 02.01.2017 and during arguments on 18.01.2017, the Counsel for the complainant stated that the complainant, to show her bonafide, was ready to get possession of the unit, in question, alongwith reasonable compensation as the complainant had booked the unit, in question for her personal residential use.  

32.        In this complaint, Opposite Party No.1 has also raised an objection that the complainant is not a consumer as she purchased the unit, in question, for investment purposes. It may be stated here that the complainant, in Para 1 of her complaint, has categorically stated that since she wanted to purchase a residential plot for her personal residential use, accordingly, she applied for a plot in the project of Opposite Party No.1.  Opposite Party No.1, in its written statement, in the preliminary objections under Clause (d), at Page 55, has stated that the family of the complainant has got allotment of eight plots and two apartments with Opposite Party No.1 as well as from the other Ireo Group Company. It is the case of Opposite Party No.1 that the complainant has also booked second apartment bearing No.JCC-03-002 with the Opposite Party and allotment rights of the said apartment have already been sold by her for commercial gains to Sh. Kulwant Singh as is evident from Nomination/Assignment of rights letter dated 11.06.2012 issued by Opposite Party No.1. It was further stated that the complainant is also co-owner of K.No.725, Sector 8-C, Chandigarh.

33.        It may be stated here that the complainant, in her rejoinder, has made it clear that the apartment JCC-03-002, so transferred in the name of Sh. Kulwant Singh, was without any profit, hence there was no commercial gain to her from transfer of the said apartment in the name of Sh. Kulwant Singh. With regard to the ownership of H.No.725, Sector 8-C, Chandigarh, it was stated that the same has been built by her husband with his hard earned money and is jointly owned by the entire family and as such, owning the said house cannot be an impediment for barring the complainant to invest in a property, on account of growing family needs. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Party No.1, mere bald assertion to that effect, cannot be taken into consideration. Therefore, in view of law settled in the cases of Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd.; DLF Universal Limited Vs. Nirmala Devi Gupta and Aashish Oberai Vs. Emaar MGF Land Limited (supra), the complainant falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Party No.1, in its written reply, therefore, being devoid of merit, is rejected.  

34.        The complainant, in this case, is, therefore, held entitled to compensation by way of grant of 12% interest (simple) on the deposited amount for the delayed period i.e. w.e.f. 18.07.2014 (computing 30 months from the date of approval of building plans and not from the date of Agreement i.e. 03.10.2011) till possession is handed over.

35.        As regards compensation for mental agony, physical harassment and deficiency in rendering service, perusal of record reveals that the complainant has been in default of remitting various installments as indicated in the table in Para 4, at Page 31 of the written statement, and the same is extracted hereunder:-

 

Description of Installment	Payable amount of Installment	Date of Demand note/due date	Details of Reminders & Final Notice	Details of Payment/ Payment received Date	No. of days of delay.
Installment due within 30 days of booking (2nd Installment).	Rs.2,87,532/-	05.07.2011/ 04.08.2011	08.08.2011, 23.08.2011	Not paid hence included in next Demand Note as Arrears.	…..
Installment due within 3 months of booking. (3rd Installment).	Rs.5,07,905.10 + Rs.2,80,313.87 (Arrears) = Rs.8,08,515.61	06.09.2011/ 03.10.2012	….	29/09/2011	56 days for aforesaid Arrears.
Installment due on completion of excavation. (4th Installment).	Rs.6,22,292.34	17.02.2012/ 15.03.2012	19.03.2012, 03.04.2012.	25/04/2012 vide cheque as recd. on 25/04/2012	41 days
Installment due on completion of basement roof slab. (5th Installment).	Rs.6,24,394.41	14.11.2012/ 11.12.2012	15.12.2012/ 05.01.2013 Final Notice dated 26/01/2013	01/03/2013	80 days.
Installment due on completion of third floor roof. (6th Installment)	Rs.6,24,788.48	26.06.2013/ 23.07.2013	27.07.2013	Not paid hence included in next Demand Note as Arrears.	….
Installment due within three months of completion of third floor roof. (7th Installment).	Rs.6,27,102.08 + Rs.6,24,738.48 (Arrears) = Rs.12,51,890.56	29.08.2013/ 25.09.2013	29.08.2013/ 21.10.2013, Final Notice dated 11/11/2013	Part payment of Rs.6,25,945/- on 26.11.2013. Rest claimed in next Demand Note as Arrears.	126 days for the Arrears.
Installment due within six months of completion of third floor roof. (8th Installment).	Rs.6,39,954.78 + Rs.6,25,945/- (Arrears) = Rs.12,65,899.78	26.11.2013/ 23.12.2013	27.12.2013/ 17.01.2014	Part payment of Rs.6,24,788/- on 18.02.2014 vide cheque dated 12/02/2014. Rest claimed in next Demand Note as Arrears.	146 days for the Arrears.
Installment due within nine months of completion of third floor roof. (9th Installment).	Rs.6,39,954.78 + Rs.6,41,113.06 (Arrears) = Rs.12,81,067.84	24.02.2014/ 23.03.2014	27.03.2014/ 17.07.2014, Final Notice Dated 08/05/2014.	Not paid till date.   Hence claimed in the next Demand Note.	974 days till the date of filing of the complaint.
Installment due within twelve months of completion of third floor roof. (10th Installment)	Rs.6,39,954.78 + Rs.12,81,067/- (Arrears) = Rs.19,21,021.89	26.05.2014/ 17.07.2014	26.06.2014/ 17.07.2014 Final Notice Dated 02/01/2015 Last & Final Opportunity Letter Dt. 28/04/2015	Not paid till date.	770 days till the date of filing of the complaint.
			Total no. of days of delay		2193 days

 

36.        The delay in remitting installments timely, contributes to delay in completion of the project. The complainant, in the instant case, is, therefore, not entitled to the same compensation on this account.  Under these circumstances, compensation for mental agony, physical harassment and deficiency in providing service, in the sum of Rs.1 lac (Rupees One Lac only), if granted, would be adequate to serve the ends of justice. The complainant is also held entitled for costs of litigation in the sum of Rs.35,000/-.

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

38.         For the reasons, recorded above, both the complaints bearing Nos.690 of 2016 and 544 of 2016 are partly accepted with costs.

 

 

Complaint Case No.690 of 2016 titled ‘Shima Saggar Vs. Puma Realtors Pvt. Ltd. & Anr.’

 

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

1. To hand over physical possession of  the unit, allotted in favour of the complainant, complete in all respects, including modular kitchen with cupboards above the slab also and provision for Split AC in all bedrooms, drawing & dining room, to the complainant, within a period of four months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against her.
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc. by the complainant.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, from 18.07.2014 to 28.02.2017, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainant w.e.f. 01.03.2017, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1,50,000/- (Rupees One Lac and Fifty Thousand Only) on account of mental agony and physical harassment, caused to the complainant, and Rs.35,000/- as cost of litigation, to the complainant, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.

       In view of statement given by Sh. Ramnik Gupta, Advocate, Counsel for Opposite Party No.1, the complaint against Opposite Party No.2 stands dismissed with no orders as to cost.

Complaint Case No.544 of 2016 titled ‘Mrs. Nirmal Milkha Singh Vs. Puma Realtors Pvt. Ltd.’

 

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

1.        To hand over physical possession of  the unit, allotted in favour of the complainant, complete in all respects, within a period of four months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against her.
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc. by the complainant.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, from 18.07.2014 to 28.02.2017, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainant w.e.f. 01.03.2017, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1,00,000/- (Rupees One Lac Only) on account of mental agony and physical harassment, caused to the complainant, and Rs.35,000/- as cost of litigation, to the complainant, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.

39.        Certified Copies of this order be placed in the file of complaint bearing Nos.544 of 2016.

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

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

Pronounced.

09.02.2017.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

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