Chandigarh

StateCommission

CC/82/2017

Sukhpal Singh Bhullar - Complainant(s)

Versus

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

Adarsh Malik, Adv.

05 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	82 of 2017
Date of Institution	:	24.01.2017
Date of Decision	:	05.05.2017

 

Sukhpal Singh Bhullar son of Sh. Darshan Singh, resident of House No.2094, Sector-15, Chandigarh.

……Complainant

V e r s u s

1.M/s PUMA Realtors Private Limited, (An IREO Group Company), having its Registered Office at No.5, Dhanraj Chambers, 1^st Floor, Satbari, New Delhi-110074.

2.M/s PUMA Realtors Private Limited, (An IREO Group Company), having its Corporate Office at SCO No.6-8, First and Second Floor, Sector 9-D, Chandigarh – 160009 (India) through its Head/Incharge.

3.M/s PUMA Realtors Private Limited, (An IREO Group Company), having its Corporate Office at SCO No.6-8, First and Second Floor, Sector 9-D, Chandigarh – 160009 (India) through its Authorized Signatory Ms. Sunaina Minhas D/o Major Arbinder Singh.

….. Opposite Parties.

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

 

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

              SH. DEV RAJ, MEMBER.

              MRS. PADMA PANDEY, MEMBER.

 

Argued by:

Sh. Adarsh Malik, Advocate for the complainant.

Sh. Ramnik Gupta, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

             The facts, in brief, are that the complainant was allotted an apartment bearing No.001, Category 3B2T-S, Fifth Floor in Tower No.B, measuring approx. 1609 sq. ft., in Cassia Court in a Group Housing Project known as IREO Rise situated in Sector 99, SAS Nagar, Mohali vide provisional allotment letter dated 02.11.2010 (Annx. C-1), An Apartment Buyer’s Agreement was executed between the parties on 02.06.2011 (Annexure C-2). The Basic Sale Price of the said apartment was Rs.45,42,570/-. As per Clause 4 of the Agreement, all payments were to be made vide demand draft/banker cheque/ ordinary cheque payable at par at Chandigarh. Further as per Clause 7 of the Agreement, the complainant opted for payment plan annexed with Annexure IV and he was bound to pay installments only in case of construction linked payment plan. It was stated that complainant paid all the installments as per schedule vide receipts (Annexure C-3).

2.          As per clause 13.3 of the Agreement, physical possession of the unit, in question, was to be handed over by the Opposite Parties within a period of 30 months from the date of the agreement or approval of the building plans, whichever was later. Further as per Clause 13.5 of the Agreement, in the event of delay in handing over possession beyond 30 months plus further 12 months extended delay period, the Opposite Parties were to pay compensation to the complainant @Rs.7.50 per sq. ft. of the super area for every month of delay. It was further stated that vide letter dated 30.12.2015, the Opposite Parties intimated the complainant that they were anticipating offer of possession before the end of June 2016 and handover the same in a phased manner. It was further stated that since the building plans were approved on 18.01.2012, therefore, the start date for calculating the commitment period shall be the date of approval of building plans.

3.          It was further stated that ultimately, on 18.08.2016, the complainant sent a notice (Annexure C-5) to the Opposite Parties regarding termination of allotment/agreement. It was further stated that despite receipt of total amount of Rs.46,81,834/- and expiry of more than three years i.e. 30 months plus 180 days grace period,  the Opposite Parties did not inform about the status of the project. It was further stated that the complainant is an agriculturist by profession and paid his hard earned money to the Opposite Parties and is now moving from pillar to post for refund. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service and indulgence into unfair trade practice.

4.          Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties to refund the amount of Rs.46,81,834/- and delay compensation as per Clause 13.4 alongwith interest @24%; pay Rs.20 Lacs as compensation on account of mental suffering and agony besides Rs.40,000/- as litigation expenses.

5.          The Opposite Parties, in their written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.34 in the Apartment Buyer’s Agreement dated 02.06.2011; 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 the Act; that the complainant did not hire any services of the Opposite Parties, as the parties did not enter into any contract for hiring the services; that the complainant is not a consumer, as he purchased the unit, in question, not for his personal use but for investment/commercial purpose; 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 complainant only disclosed the basic sale price of the unit, in question and deliberately and willfully concealed that he agreed to pay not only the basic sale price but also Rs.30/- per sq. ft. towards IFMS & Rs.100/- per sq. ft. towards EDC charges, applicable, service tax, stamp duty, registration charges and any other tax etc. as mentioned in term and condition no.3. It was further stated that as per letter dated 12.04.2012 and latest statement of account, the  total sale consideration of the unit, in question, was Rs.48,77,600.99. It was further stated that joint reading of Clauses 13.3, 13.4 and 13.5 of the agreement would reveal that the period to offer possession of the unit, in question, was to travel beyond 30 months and the complainant had duly agreed to receive the liquidated compensation after expiry of 36 months till possession was actually offered. It was further stated that in the present case, possession was to be reckoned from the date of passing of building plans i.e. from 18.01.2012 and not from the date of execution of the agreement.

7.          It was admitted that letter dated 13.12.2015 was an update on the progress of the project and it nowhere suggested that the Opposite Parties ever admitted delay in offer possession, as alleged. It was further stated that intimation to the extent that the Opposite Parties are anticipating offer of possession before the end of June, 2016 was based merely upon estimation. It was denied that the Opposite Parties ever promised to hand over possession before June 2016 as per letter dated 30.12.2015. It was further stated that as per Clause 13.5 of the agreement, refund amount was payable after 90 days of the notice of termination and, as such, no amount was payable before 18.11.2016. It was further stated that since the complainant totally remained silent up to 18.08.2016, the question of suffering mental harassment and agony does not arise at all.  It was further stated that the Opposite Parties had already applied for issuance of the Occupation Certificate with the competent authorities on 11.08.2016 and they will offer possession of the unit, in question, alongwith agreed liquidated damages to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

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

9.          The Opposite Parties, in support of their case, submitted the affidavit of Sh. Rajneesh, their Authorised Representative, by way of evidence, alongwith which, a number of documents were attached. 

10.        The complainant filed rejoinder, wherein, he reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Parties. 

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

12.        It is evident, on record, that vide provisional allotment letter dated 02.11.2010 (Annexure C-1), the complainant was allotted Residential Apartment No.CCB-05-001, in Group Housing Project known as ‘Ireo Rise’ on Fifth Floor, Tower – B, Cassia Court, situated in Sector 99, SAS Nagar, Mohali having

tentative super area of 1609 sq. ft. together with one parking space, forming indivisible part thereof and Apartment Buyer’s Agreement was executed between the complainant and the Opposite Parties on 02.06.2011 (Annexure  C-2). The basic sale price of the unit was Rs.45,42,570/- besides External Development Charges (EDC) Rs.1,60,900/- and IFMS charges in the sum of  Rs.48,270/-. Thus, the total sale consideration of the unit, in question, including service tax was Rs.48,68,711/-. The payment against the aforesaid unit was to be regulated as per Payment Plan, Annexure IV (at Page 73 of the complaint). The complainant made payment in the sum of Rs.46,81,834.00 as is apparent from statement of account placed on record by the Opposite Parties as Annexure OP-8 (at Page  161 of the written statement). In terms of Clause 13.3 of the Agreement (executed on 02.06.2011), 30 months period for handing over possession from the date of approval of building plans, viz. 18.01.2012, expired on 17.07.2014. Admittedly, possession has not been offered/delivered to the complainant by the Opposite Parties. As regards deficiency in promised amenities viz. multipurpose hall, swimming pool, gym, badminton and basket ball courts, kids play area and jogging track etc., the Opposite Parties have categorically stated in their written statement that these facilities/amenities shall be completed before handing over of possession.

13.           It was argued by counsel for the Opposite Parties  that  in the face of existence of arbitration

clause No.34 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 the Opposite Parties, being devoid of merit, is rejected.

14.        Another objection raised by the Opposite Parties 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 the Opposite Parties, 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 the Opposite Parties, 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”

 

15.          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 him, as he falls within the definition of ‘consumer’, as stated above. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

16.        To defeat claim of the complainant, the next objection raised by the Opposite Parties 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, he would not fall within the definition of consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. The Counsel for the Opposite Parties argued that the complainant was owner of House No.2094, Sector 15-C, Chandigarh and purpose of purchasing the unit, in question, was also not mentioned. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Counsel for the Opposite Parties placed reliance on Mehmooda Sheikh Vs. M/s Distinct Infrastructure Ltd. & 3 Ors., Revision Petition No.2962 of 2015 decided by National Commission on 14.3.2016 alongwith which, connected Revision Petitions Nos.2963 of 2015 to 2970 of 2015 were also decided. The facts of Mehmooda Sheikh Vs. M/s Distinct Infrastructure Ltd. & 3 Ors’s case (supra) are distinguishable as in that case, the complainants were allotted nine plots. The National Commission in Paras 8 and 9 observed that “…… why the family need nine plots plus house, where they are residing now a days.” It was further observed that had the intention of the petitioners/complainants been fair, she/he would have purchased the same in his/her individual name that too 4 to 5 plots only. In  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Commission 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 unit, 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 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.”

 

Therefore, in view of law settled by the National Commission in the aforesaid cases, the complainant falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

17.        The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident from 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, provisional allotment letter dated 02.11.2010 (Annexure C-1), receipts (Annexures C-3) at Pages 91 to 104) and letter dated 30.12.2015 (Annexure C-4) were issued by the Opposite Parties from its Chandigarh Office i.e. SCO 6-7-8, 1st & 2nd Floor, Sector 9-D, Chandigarh. Since, as per Clause 33 of the Agreement and 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.

18.        No doubt, in the written version, an objection was also taken by the Opposite Parties, 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.

19.        In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D. Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to him, to file the complaint. The submission of Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

20.        The core 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 seek refund of the amount deposited by him alongwith interest. It may be stated here that as per Clause 13.3 of the Apartment Buyer’s Agreement dated 02.06.2011 (Annexure C-2), subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment of the preconditions imposed thereunder whichever was later. As is evident from Annexure  OP-9, the building plans were approved on 18.01.2012 i.e. subsequent to execution of agreement dated 02.06.2011. Therefore, in terms of aforesaid clause, 30 months period for delivering possession was to start from 18.01.2012, which period expired on 17.07.2014. On account of force majeure circumstances, referred to above, the Opposite Parties were entitled to advantage of 180 days grace period after expiry of commitment period of 30 months to allow for unforeseen delays in obtaining the occupation certificate etc. from the Competent Authority. No cogent evidence or justification for seeking advantage of 180 days grace period has been placed on record by the Opposite Parties. As revealed during arguments by Counsel for the Opposite Parties, occupation certificate was applied much later on 11.08.2016. In absence of any cogent evidence, the argument that delay was caused by the authorities does not merit consideration. The complainant, in Para 13 of his complaint, has stated that more than 3 years have passed i.e. 30 months plus 180 days grace period but the Opposite Parties did not inform about the status of the project. The fact remains that even after expiry of grace period of 180 days, the Opposite Parties failed to offer/deliver possession of the unit, in question, to the complainant. Clause 13.4 of the Agreement envisages that in case of delay beyond the period as referred to above, in handing over possession, the Opposite Parties shall be under obligation to pay penalty amount for the delayed period. Computing 30 months from the date of approval of building plans, on 18.01.2012, at the maximum, possession was to be delivered to the complainant by 17.07.2014. Even if, it is accepted that the Opposite Parties are entitled to further 12 months of extended delay period, as per Clause 13.5 of the Agreement, date of handing over possession came to an end on 17.01.2016. Despite clearly admitting delay, the Opposite Parties did not pay the penalty amount to the complainant, which amounts to deficiency in service and is an act of unfair trade practice. It is, thus, an admitted fact that possession of the unit, in question, has not been offered, by the date of filing the instant complaint, or even till date, for want of completion of unit and basic amenities at the site despite the fact that the complainant had already paid an amount of Rs.46,81,834/- as against the sale consideration of Rs.48,68,711/- including service tax. Vide letter dated 30.12.2015 (Annexure C-4), the Opposite Parties informed the complainant that all the amenities mentioned in the said letter shall be completed and made available for the residents by the time, Opposite Parties completes the hand over 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.”

 

The Opposite Parties even failed to abide by their commitment to offer possession of the unit, in question, by the end of June 2016.

21.        Complainant vide letter dated 18.08.2016 (Annexure C-5) requested the Opposite Parties to terminate the allotment/agreement and sought refund of the deposited amount. The Opposite Parties in Para 12 of their written statement admitted that refund amount was payable after 90 days. The notice having been sent on 18.08.2016, 90 days period expired on 17.11.2016. When the Opposite Parties failed to refund the amount deposited by the complainant, he filed the instant complaint on 24.01.2017. The complainant cannot be expected to wait indefinitely. The Opposite Parties were duty bound to hand over possession within 30 months   i.e. by 17.07.2014 but they failed to hand over possession even after expiry of grace period (though there is no justification for grace period) and extended delay period. Counsel for the Opposite Parties could not give any firm date, by which, they (Opposite Parties) would be handing over possession. Clearly there is delay in delivering possession. By making a misleading   statement, that possession of the unit, was to be delivered within the maximum period of 30 months from the date of execution of the Agreement/approval of building plans and within further extended period of 180 days and thereafter during the extended delay period of 12 months, and by not abiding by the commitment made, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice. Non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement, on the part of the Opposite Parties. This Commission in case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, relying upon the judgments rendered by the Hon’ble National Commission, ordered refund to the complainant while holding 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 Complainant 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.”

 

Further in ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh’, First Appeal No.462 of 2014, decided on 03.07.2015, Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in Para 16, held as under:-

“16.    Admittedly, appellants did not offer possession of the apartment within  the prescribed period, in terms of Clause 21 of the “Apartment Buyer’s Agreement”,  Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only  in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame  the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering  service but are also guilty of indulging into unfair trade practice. The appellants in  the present  case are enjoying the hard earned money  of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.”

 

The aforesaid appeal was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi with punitive damages. Aggrieved against the aforesaid order, Emaar MGF Land Limited filed Special Leave to Appeal (C) No(s). 32492/2015 before the Hon’ble Supreme Court of India and the same was also dismissed.

22.        It was also 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. Recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015 decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder while holding as under:-

“I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and, therefore, is entitled to refund the entire amount paid by him alongwith reasonable compensation, in the form of interest.”

 

             In view of the above, it is held that since there was a material violation on the part of the Opposite Parties, in not handing over possession of the unit by the stipulated date or even till date, the complainant is entitled to refund of the amount deposited, alongwith interest and compensation by way of filing the instant complaint.

23.        It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. During arguments, Counsel for the Opposite Parties stated that the complainant did not suffer any loss. The complainant did not get possession of the unit, in question, within the stipulated period and thereafter also till date. It is not in dispute that an amount of Rs.46,81,834/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. The argument of the Opposite Parties is, therefore, not tenable. 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 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, alongwith interest @13% p.a. (simple) (less than the rate of interest charged by the Opposite Parties).

24.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to him. Clearly possession of the unit, in question, has not been offered to the complainant till date on account of which, he (complainant) suffered mental agony and physical harassment. The compensation in the sum of Rs.20 Lacs claimed by the complainant is highly exaggerated. Compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.2 Lacs, if granted, would be adequate to serve the ends of justice.

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

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

(i)    To refund the amount of Rs.46,81,834/- to   the   complainant, alongwith interest @13% p.a. (simple), from the respective dates of deposits, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)   To pay an amount of Rs.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 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 filing the complaint, till realization and amount mentioned in Clause (ii) above, with interest @13% p.a. (simple) from the date of filing the complaint till realization.

27.        However, it is made clear that in case, the complainant has availed loan facility from any financial institution(s), such an institution shall have the first charge on the amount payable, to the extent, the same is due against the complainant.

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

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

Pronounced.

05.05.2017

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(DEV RAJ)

MEMBER

 

 

 

(PADMA PANDEY)

      MEMBER

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