Chandigarh

StateCommission

CC/121/2017

Usha Rani - Complainant(s)

Versus

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

Arun Kumar, Varun Bhardwaj, Adv.

17 Jul 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	121 of 2017
Date of Institution	:	09.02.2017
Date of Decision	:	17.07.2017

 

Usha Rani wife of Late Sh. Raj Kumar R/o H.No.1328, Sector 22-B, Chandigarh.

 

……Complainant.

Versus

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

….Opposite Parties.

 

Argued by:

 

Sh. Varun Bhardwaj, Advocate for the complainant.

Sh. Ramnik Gupta, Advocate for the Opposite Parties.

 

Consumer Complaint	:	122 of 2017
Date of Institution	:	09.02.2017
Date of Decision	:	17.07.2017

 

Usha Rani wife of Late Sh. Raj Kumar R/o H.No.1328, Sector 22-B, Chandigarh.

 

……Complainant.

Versus

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

….Opposite Parties.

 

Argued by:

 

Sh. Varun Bhardwaj, Advocate for the complainant.

Sh. Ramnik Gupta, Advocate for the 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. Varun Bhardwaj, Advocate for the complainant.

Sh. Ramnik Gupta, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

             By this order, we propose to dispose of, two consumer complaints, bearing no.121 of 2017 and 122 of 2017 both filed by Mrs. Usha Rani against Puma Realtors Pvt. Ltd. and another. The issues involved in both the cases aforesaid, except minor variations, here and there, of law and facts are the same. Arguments were heard in common, in the above cases.

2.                 Under above circumstances, to dictate order, facts are being culled from consumer complaint, bearing no.121 of 2017 titled as ‘Usha Rani Vs. Puma Realtors Pvt. Ltd. and another’.

3.                 The facts, in brief, are that Gurleen        Kaur and Inderbir Singh, husband and wife, R/o H.No.2416, Sector 35-C, Chandigarh applied for a residential plot in the project of the Opposite Parties, namely ‘IREO Hamlet’, total price whereof was Rs.62,64,750/-. Initially, they paid Rs.6,50,000/- to the Opposite Parties vide receipt dated 03.05.2011. Vide provisional allotment letter dated 05.05.2011, they were allotted Plot No.99, measuring 250.59 Sq. Yards in the said project in Sector 98, SAS Nagar, Mohali. Plot Buyer’s Agreement was also executed between them and the Opposite Parties on 15.07.2011 at Chandigarh. Thereafter, Mrs. Gurleen Kaur and Sh. Inderbir Singh  paid Rs.2,89,713/-, Rs.5,00,000/- and Rs.5,19,594/- to the Opposite Parties on 03.06.2011, 08.09.2011 and 10.02.2012 respectively. However, due to some personal reasons, they surrendered the said plot. It was stated that complainant, namely, Usha Rani, was residing in H.No.1328, Sector 22-B, Chandigarh,  in a joint family property and she was residing there alongwith  her husband and children. It was further stated that after death of her husband, she (complainant) and her children were alone and being a joint property, there were lot of issues and in order to live peacefully, the complainant decided to buy two plots. The complainant purchased the aforesaid plot bearing No.99 from Smt. Gurleen Kaur and Sh. Inderbir Singh for the purpose of giving the same to her daughter Ritika Garg in her marriage, so that she can live close to her. The complainant decided to live in H.No.94, IREO Hamlet, situated at Sector 98, SAS Nagar, Mohali, Punjab.

4.            It was further stated that after receiving the due amount from the complainant, necessary endorsement was also made by the Opposite Parties in their record as well as on the back side of documents, in favour of the complainant, on 20.03.2012. The rights in the property were finally transferred in favour of the complainant vide letter dated 21.03.2012 (Annexure C-5). Thereafter, the complainant deposited the following amounts with the Opposite Parties:-

Sr. No.	Date	Amount deposited (Rs.)
1.	28.05.2013	10,19,595.00
2.	07.02.2014	5,50,000.00
3.	10.02.2014	4,59,398.00
4.	07.03.2014	10,196.00
5.	11.08.2014	4,00,000.00
6.	12.08.2014	6,20,148.00
7.	23.01.2015	4,60,000.00
8.	27.01.2015	80,000.00
9.	11.02.2015	1,50,000.00
10.	29.04.2015	7,56,000.00

 

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

6.          The complainant visited the spot in April, 2015 and May, 2015 and found that there was no development at the site. It was further stated that the Opposite Parties very cleverly issued letter dated 12.05.2015 offering possession to the complainant which was a camouflage and just a paper possession, to usurp the hard earned money of the complainant. It was further stated that till 12.05.2015, the Opposite Parties have not obtained completion certificate from the competent authority. It was further stated that the Opposite Parties used the money for their own profit and have not developed the site as yet and the complainant is not satisfied from the project of the Opposite Parties as the money deposited by her has been blocked. It was further stated that the complainant and her daughter Ritika Garg took loan of Rs.29 Lacs on 01.04.2013 from HDFC Bank Ltd. for repaying regular installments to the Opposite Parties and the complainant is regularly paying bank installments alongwith interest @11% p.a. It was further stated that the complainant sought refund of the deposited amount vide email dated 12.06.2015 but to no avail. It was further stated that the complainant is no more interested to throw her hard earned money in the project of the Opposite Parties. It was further stated that the acts of the Opposite Parties amounted to deficiency, in rendering service and indulgence into unfair trade practice.

7.          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) claiming refund of Rs.65,11,568/- alongwith interest @18% p.a. from the respective dates of deposits, Rs.5,00,000/- as compensation on account of mental agony & physical harassment and Rs.1,00,000/- as cost of litigation.

8.          The Opposite Parties, in their joint written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.33 in the              Plot    Buyer’s   Agreement   dated  15.07.2011;  that   the complainant did not book the plot for her personal use but for investment/commercial purpose; that since the present complaint related to an agreement to sell/purchase of a plot i.e. an immovable property, therefore, the same is not covered under 1986 Act and further, since the complainant sought enforcement of the Agreement, only a Civil Court has the jurisdiction, and as such, consumer complaint was not maintainable and that this Commission has no territorial jurisdiction on account of existence of Clause 35 in the Agreement. 

9.          On merits, it was denied that the total sale consideration of the plot was Rs.62,64,750/-. It was stated that the total sale consideration of the plot was Rs.66,71,983.81 and Rs.62,64,750/- was only the basic  sale price of the said plot. It was further stated that after execution of the Agreement, the payment plan was changed from Time Linked Payment Plan to Development Linked Payment Plan, which was in the benefit of the allottees. It was further stated that the payments were made by the original alottees towards discharge of their contractual obligation and payments made on 08.09.2011 and 10.02.2012 were made with delay of 33 and 155 days. It was denied that the original allottee surrendered their plot in the project of Opposite Party No.1. It was denied that the allotment rights of the plot, in question, were purchased by the complainant for her younger daughter Ritika Garg and that another plot was purchase to live in alongwith her sons after constructing the house. It was further stated that there was total 178 days delay in making payments by the complainant. It was further stated that the installment payable at the time of possession and as demanded alongwith the notice of possession dated 12.05.2015 has not been paid by the complainant till the date of filing of the written statement. It was further stated that the complainant has paid a sum of Rs.64,64,644/- towards the consideration price of the plot in question. It was further stated that the due to delay in making payment of due installments, a sum of Rs.46,924/- was paid towards part payment of the delay period interest and still a sum of Rs.40,894/- remained unpaid.

10.        It was further stated that the complainant after reading and understanding the terms and conditions of the Agreement, purchased the allotment rights of the plot, in question, from the original allottee. It was further stated that it was not agreed that possession was to be offered after expiry of 42 months from the date of Agreement. On the contrary, it was agreed vide Clause 11.1 of the Agreement that the complainant shall punctually pay the due installments in time and further, if the Opposite Parties failed to offer possession on expiry of grace period (30 months), the Opposite Parties shall be liable to pay compensation @50/- per sq. yard per month till actual date fixed for handing over of possession. It was further stated that the complainant never opted for termination of allotment before dispatch of notice of possession dated 12.05.2015. It was further stated that the possession was offered vide letter dated 12.05.2015.  It was further stated that the complainant did not pay the due  installment  as  demanded  vide  notice of possession whereas as per Clause 19 of the Agreement, timely payment was the essence of the Agreement. It was further stated that the Opposite Parties always demanded the due installment on achieving the specific mile stone as per the agreed development linked payment plan dated 26.09.2011.

11.        It was further stated that development work commenced on site w.e.f. 01.05.2013 and stood carried on continuously in a phased manner at a good pace till April, 2015 and resultantly, the Opposite Parties started process of handing over of the developed plots by way of issuing notices of possession to various allottees w.e.f. May 2015. It was denied that there was no development at the site either in April 2015 or in May 2015. It was further stated that all basic amenities/facilities for handing over a plot in a plotted colony, were in existence at the site at the time of offer of possession on 12.05.2015. It was further stated that even the report of Local Commissioner filed in complaint titled ‘Abha Arora Vs. PUMA Realtors Pvt. Ltd. and another’, bearing No.170 of 2015, clearly unveils the false allegations made by the complainant.

12.        It was further stated that since the Opposite Parties have been granted exemption from the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short ‘PAPRA 1995’) by the Govt. of Punjab, the Opposite Parties were/are not under any obligation to obtain the completion certificate under PAPRA 1995. It was specifically denied that the Opposite Parties issued any letter to any allottee whereby they themselves admitted that there were no basic amenities i.e. internal roads and sewerage at the site. It was further stated that whatever amount was paid by the complainant or by the other allottees, the same had been spent on the development of the site in order to issue the valid and legal notices of possession of the developed plots to them. It was further stated that the complainant has already acted upon the said notice of possession and made the payment as demanded therein, got the agreed delayed possession compensation and the overall relief of the waiver of delayed payment interest, which she was otherwise contractually bound to pay to Opposite Party No.1. 

13.        It was further stated that show cause notice dated 22.06.2016 has no relevance with the present case, in as much as, the said letter was issued by the authorities on the personal complaint of P.S. Saini. It was further stated that the complainant had been sanctioned loan of Rs.17,00,000/- by the HDFC Bank in her sole name vide sanction letter dated 27.05.2013 and accordingly, against the said sanction, the permission to mortgage dated 28.05.2013 was issued by the Opposite Party and tripartite agreement against the aforesaid sanction was executed. It was denied that the complainant took loan of Rs.29 Lacs on 01.04.2013 from HDFC Bank for repaying the regular installments to the Opposite Parties. It was further stated that the complainant never sought refund of the amount, therefore, the question of refund of the deposited amount do not arise. 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.

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

15.        The Opposite Parties, in support of their case, submitted the affidavit of Shri Rohit Tanwar, their Authorised Representative, by way of evidence, alongwith which, a number of documents were attached. 

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

17.        It is evident, on record, that Plot No.99 in the residential project “IREO Hamlet” admeasuring 250.59 sq. yard, Sector 98, SAS Nagar, Mohali, was allotted vide provisional allotment letter dated 05.05.2011 (Annexure C-1), to Ms. Gurleen Kaur and as per Details of Plot (Annexure C-2), basic sale price of the said plot was Rs.25,000/- per sq. yard besides External Development Charges (EDC) @Rs.1,275.10 per sq. yard, and IFMS charges @Rs.350/- per sq. yard. Admittedly, Plot Buyer’s Agreement was executed between Ms. Gurleen Kaur, her husband Sh. Inderbir Singh and the Opposite Parties on 15.07.2011 (Annexure C-3) at Chandigarh. The payment against the aforesaid plot was to be regulated as per payment plan, Annexure I (Annexure C-4 of the file). Thereafter, onward rights/obligations with respect to the said plot were assigned in the name of the complainant Ms. Usha Rani vide letter dated 21.03.2012 (Annexure C-5) and endorsement in favour of the complainant was also made. Against the total price of the plot including External Development Charges and IFMS Charges, in the sum of Rs.66,71,983.81, the Opposite Parties received an amount of Rs.64,46,644.00 towards installments including IFMS + Rs.87,818.00 towards delayed interest, totaling Rs.65,11,568/-. As admitted by the Opposite Parties, the development work started at the site only on 01.05.2013, almost two years after the execution of Plot Buyer’s Agreement dated 15.07.2011. The possession was offered on 12.05.2015 i.e. before filing of the present complaint on 09.02.2017. The case of complainant is that possession offered was without development of the site and basic amenities.

18.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration  clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has 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.”

 

 

Same is the ratio of recent judgment passed by Hon’ble National Commission in case titled ‘Aftab Singh Vs. Emaar MGF Land Ltd. & Anr.’, in Consumer Complaint No.701 of 2015, with IA/247/2016, IA/505/2017, IA/7294/2015, IA/9570/2015 & IA/11813/2016, decided on 13.07.2017.

             In view of the above, the objection raised by the Opposite Parties, being devoid of merit, is rejected.

19.                  To defeat claim of the complainant, the next objection raised by the Opposite Parties was that since the complainant had purchased the plot, 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 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. Moreover, the complainant in Paras 7 to 9 of the complaint has clearly stated that she was residing in H.No.1328, Sector 22-B, Chandigarh, in a joint family property, alongwith her husband and children. After death of her husband, the complainant and her children were alone and being a joint property, there were lot of issues and in order to live peacefully, the complainant decided to buy two plots. It was stated that the complainant purchased the plot bearing No.99 from Smt. Gurleen Kaur and Sh. Inderbir Singh for the purpose of giving the same to her daughter Ritika Garg in her marriage, so that she could live close to her, whereas the complainant decided to live in H.No.94, IREO Hamlet, situated at Sector 98, SAS Nagar, Mohali, Punjab. 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. 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 had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

 

The complainant, thus, 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.  

20.        Another objection raised by Counsel for 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 plot, in question, in the manner, referred to above. According to Clause 11.1 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver physical possession of the unit, within a period of 30 months i.e. (24 months + 6 months grace period), from the date of execution of the same (Agreement), with complete basic amenities, as provided in Clause 21.2. Section 2 (1) (o) of the Act, defines service as under:-

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

 

 

 

 

             From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). 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 a 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 Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

21.        The next objection raised by the Opposite Parties is that Clause 35 in the Plot Buyer Agreement, bars the territorial jurisdiction of this Commission, to entertain and try the complaint. It may be stated here that this issue has already been dealt with in detail by this Commission in the case of ‘Jarnail Singh Sandhu Vs. M/s Puma Realtors Pvt. Ltd. & Anr.’, Consumer Complaint No.173 of 2016 decided on 02.09.2016. Para 19 of the said judgment, being relevant is, inter-alia, extracted hereunder:-

“19……..It may be stated here that according to Section 17 of the Act, a consumer complaint could be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case,  it is evident, that receipt dated 12.07.2011 in the sum of Rs.9,37,500/- (Annexure C-I), provisional allotment letter dated 04.08.2011 (Annexure  C-II), receipt dated 15.10.2011 in the sum of Rs.10,53,130.58 (Annexure C-III), letter dated 26.09.2011 regarding offer for change of payment plan (Annexure C-IV) and two receipts dated 13.08.2013 (Annexure C-V colly.) were issued by the Chandigarh office of the Opposite Parties i.e. Puma Realtors Private Limited, S.C.O. no.6-7-8, Second Floor, Sector 9-D, Chandigarh. Since a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. A similar question arose, before the National Commission, in Smt. Shanti Vs. M/s. Ansal Housing & Construction Ltd., First Appeal No.142 of 2001 decided by the National Commission on 11.04.2002, wherein the National Commission held as under:-

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

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

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

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

It may be stated here that, for determining the territorial jurisdiction, to entertain and decide the complaint, the  Consumer Foras are bound by  the provisions of Section 11 of the Act.  In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors.-I (2008) CPJ 404 (NC), the principle of law, laid down,  by the National Commission, was to the effect, that a clause of jurisdiction, by way of an agreement, between the parties, could not be made applicable, to the consumer complaints, filed before the Consumer Foras, as the Foras are not  the Courts.  It was further held, in the said case, that there is a difference between Section 11 of the Act, and the provisions of  Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. Further, in Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)=VII (2011) SLT 371,  the principle  of law, laid down was   that the restriction of jurisdiction to a particular Court, need not be given any importance in the   circumstances of the case.  In Cosmos Infra Engineering  India  Ltd. Vs Sameer Saksena & another I (2013) CPJ31 (NC) and  Radiant Infosystem Pvt. Ltd. & Others Vs D. Adhilakshmi & Anr., I (2013) CPJ 169 (NC) the  agreements were executed, between the parties, incorporating therein, a condition, excluding the jurisdiction of any other Court/Forum,  in case of dispute, arising under the same, and limiting the jurisdiction of the Courts/Forums at Delhi and Hyderabad.  The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the jurisdiction of a particular Court/Forum, and limiting the jurisdiction of a particular Court/Forum, could not be given any importance and the complaint could be filed, at a place, where a part of cause of action arose, according to Section 11 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case.  At the same time, it is also held in the face of case Ethiopian Airlines Vs Ganesh Narain Saboo’s (supra), decided by the Supreme Court of India, the judgment titled as M/s Taneja Developers and Infrastructure Limited Vs. Gurpreet Singh and another, First Appeal No.33 of 2014, decided on 25.02.2016, by the National Commission, reliance whereupon has been placed by Counsel for the opposite parties, to support his contention, that this Commission has no territorial jurisdiction, shall not hold the field. In these circumstances, such a Clause contained in the Agreement, therefore, could not   exclude the jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainant, to file the complaint. The objection taken by the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.”

 

In the instant case, provisional allotment letter dated 05.05.2011 (Annexure C-1), letter dated 21.03.2012 (Annexure C-5) and possession letter dated 12.05.2015 (Annexure C-7) were issued from the Chandigarh Office of the Opposite Parties. Not only this, the Plot Buyer’s Agreement dated 15.07.2011 was also executed between the parties at Chandigarh. Since a part of cause of action arose to the complainant at Chandigarh, this Commission has got territorial jurisdiction to entertain and decide the complaint. 

             In view of above, this objection raised by the Opposite Parties stands rejected.

22.       The next question, which falls for consideration, is, as to whether the possession offered vide letter dated 12.05.2015 (Annexure OP-3) was complete and proper or not. The Counsel for the complainant submitted that possession of the plot, in question, offered vide letter dated 12.05.2015 was of undeveloped plot/project.     

23.       The complainant has challenged the offer of possession dated 12.05.2015 by filing the instant complaint for lack of development at the site. It has been stated in para 13 of the complaint that he visited the spot in April 2015 and May 2015 and found that there was no development at the site, which was to be done by the opposite parties by laying Roads, Water Lines, Sewer Lines, Electrical Lines etc. No doubt, nothing by way of evidence has been placed on record but apparently there was promise to make development and then offer/hand over possession of the plot, to the complainant.

24.        Undoubtedly, Opposite Parties were duty bound to provide all basic facilities like roads, sewerage, drinking water, electricity, street lights, drainage etc. There is nothing, on record, that complete development, in respect of the plot, in question, and amenities at the site as promised, as per the Agreement, were available at the site. The Counsel for the Opposite Parties argued that the complainant has not alleged any deficiency in regard to non-obtaining of approvals. It may be stated here that certain approvals such as electrical installations, NOC subject to making arrangements for suitable provision for drinking water supply and safe disposal of sullage/storm discharge and sold waste management, are inter-linked with development and basic amenities. The fact that certain amenities and approvals were complete/obtained after offer of possession, clearly proves deficiency of the Opposite Parties, as is evident from the position indicated hereinafter.

25.       In Memo No.5001 dated 7.8.2015 (Annexure OP-19), which is letter from the Chief Electrical Inspector to Govt. Punjab, Patiala, to M/s IREO Hamlet A(Residential Township Sector 98, Mohali, it is stated that inspection of subject cited electrical installation was carried out by the Electrical Inspectorate and the same was found to be conforming to the relevant provisions of Central Electricity Authority (Measure relating to safety and Electric Supply) Regulations, 2010 and the  installations  were  approved  for commissioning but clearly, this approval was accorded after offer of possession vide letter dated 12.05.2015.

26.       Even the final NOC to the Opposite Parties for 85.25 Acres residential township in Sectors 86, 98 and 99 in Village Sambhalkhi, SAS Nagar, Mohali was accorded by Punjab State Power Corporation Limited on 8.7.2015 (Annexure OP-18), after offer of possession on 12.05.2015. Further letter dated 18.05.2015 (Annexure OP-17) from Greater Mohali Area Development Authority (GMADA), informing the Opposite Parties that “…….Therefore, the arrangements for suitable provision for drinking water supply and safe disposal of sullage/storm discharge and solid waste management shall be made by promoter at his level separately and he shall obtain all necessary approvals from the concerned Authorities as per law in this regard independently. The construction work shall commence only after obtaining approvals as per law from the concerned Authorities……” was issued after offer of possession. As per this letter, number of other conditions were also required to be complied with by the promoter. The Opposite Parties have not stated whether they complied with the aforesaid conditions. Further, consent to operate an outlet for discharge of the effluent u/s 25/26 of Water (Prevention & Control of Pollution) Act, 1974 was granted to the Opposite Parties vide letter dated 05.01.2016 (Annexure OP-20) i.e. after offer of possession. It may also be stated here that the Opposite Parties furnished Bank Guarantee dated 22.03.2016 (Annexure OP-21) with expiry date/claim expiry date as 21.03.2021 in the sum of Rs.3,24,10,301/- to the PSPCL, after offer of possession. As such, the Opposite Parties had neither completed the development nor did they have all the necessary sanctions/approvals from the Competent Authorities up-till 12.05.2015 when offer of possession was made. The contention of the complainant that possession offered was not a valid and proper possession is, thus, corroborated from the evidence on record. It is, therefore, held that the Opposite Parties were not only deficient, in rendering service but also indulged into unfair trade practice, by offering a paper possession to the complainant, before completing the development as also without obtaining the necessary approvals.

27.        The next question which falls for consideration, is, whether the complainant is entitled to refund of the entire amount deposited by her. The Counsel for the opposite parties submitted that the complainant made various payment(s) without any protest and she never sought refund. It may be stated here that Plot Buyer Agreement was entered into between the parties on 15.07.2011. As per Clause 11.1 of General Clauses of the Agreement, possession of the plot, in question, was to be handed over within 24 months from the date of execution of the said Agreement with further grace period of 6 months but not later than 30 months i.e. latest by 14.01.2014. Further, as per Clause 11.2 of the Agreement, in case, possession was not offered within the stipulated period, then the Opposite Parties were liable to pay compensation calculated @Rs.50/- per sq. yard of the area every month until possession is actually handed over. Clauses 11.1 and 11.2 of the Plot Buyer Agreement dated 15.07.2011, being relevant, are extracted hereunder:-

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

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

 

28.        Since the Plot Buyer Agreement was executed on 15.07.2011, 30 months period including 6 months grace period expired on 14.01.2014. Even the extended period of 12 months, in terms of Clause 11.3 of the Agreement expired on 15.01.2015. Admittedly, possession of the unit, in question, offered to the complainant vide letter dated 12.05.2015 (Annexure OP-3) was a paper possession only. The total price of the unit was Rs.66,71,983.81 and the complainant had made payments in the sum of Rs.65,11,568/-, to the Opposite Parties, which was undoubtedly her hard earned money. No plausible reason has been assigned by the opposite parties, as to why they (Opposite Parties) failed to deliver complete possession of the unit, by the date stipulated. Delay could only be condoned, under the terms and conditions of the Agreement, if there existed plausible and justified reasons. Clearly, there is delay in handing over of possession. It may be stated here that offer sent vide letter dated 12.05.2015, has been held to be a mere paper possession. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon’ble National Commission, held as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the  complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the  complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. 

29.       In the present case also, the Opposite Parties committed breach of their obligation, in not offering possession of the plot, in question, within 30 months from 15.07.2011 i.e. date of signing of Buyer’s Agreement and even after expiry of extended delay period of 12 months, on 15.01.2015. A perusal of Clause 11.3 of the Plot Buyer’s Agreement clearly provides that “……..from the end of the Grace Period (such 12 month period hereinafter referred  to as the “Extended Delay Period”), then the Allottee shall become entitled to opt for termination of the Allotment/Agreement and refund of the actual paid up installment(s) made against the said Plot….”. Since the Opposite Parties failed to hand over valid possession of the plot, in question, with complete development and all basic amenities, to the complainant, even after expiry of 42 months from the execution of Plot Buyer’s Agreement, in view of law laid down in Emaar MGF Land Limited and another Vs. Dilshad Gill ‘s case (supra), the complainant was entitled to seek refund. Thus, in our considered opinion, the complainant is entitled to refund of the deposited amount and by not offering possession of the unit, in question, within the stipulated period and during extended delay period and by not refunding the deposited amount, the Opposite Parties were deficient in rendering service.

30.          It is to be further seen, as to whether, interest, on the amount to be refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.65,11,568/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335).  In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs.65,11,568/-, alongwith interest till realization. However, since rights in the plot were assigned in favour of the complainant on 21.03.2012 (Annexure C-5), in view of ratio of judgment in case titled ‘Darbara Singh and ors. Vs. Emaar MGF Land Limited and Ors.’, Complaint Case No.147 of 2016 decided by this Commission on 22.08.2016, on the amount(s) paid by the previous allottee up-to 21.03.2012, interest shall be payable w.e.f. 21.03.2012.

31.        It is the case of the Opposite Parties that the complainant never sought refund of the deposited amount. However, there is on record email dated 12.06.2015 (Annexure C-8), which was sent by the complainant to the Opposite Parties, after offer of possession letter dated 12.05.2015, wherein the complainant stated as under:-

“According to Clause 11.3 of the Plot’s Buyer Agreement, as the Company has not given me the Possession of the said Plot even beyond the period of 12 months from the end date of Grace period, which also lapsed on 05.01.2015, I am entitled to opt for the termination of the Allotment/Agreement and to get refund of the actual paid up installments made against the said plot after adjusting the interest/penalty on the delayed payments along with delay Compensation of 12 months.

 

Hence, please consider  my response attached and decide what you want to do and let me know as I am fully prepared to start a litigation against this breach of contract and illegal possession letter issued by IREO.”

 

       Subsequently, vide letter dated 12.06.2015 (at  Page 58 of the complaint), written to IREO Management, IREO Hamlet Project, Sec-98, SAS Nagar, Mohali, Punjab, by the complainant, the complainant, in Paras 10 & 11 of the said letter, requested as under:-

“10. As the possession of the plot has not been given to me till dated 12-May-2015, and now I have made an alternate arrangement for my residence, so I am no more interested to purchase the above plot. Therefore, I opt to Terminate the above said Plot’s Buyer Agreement for Property Number IH-Plot-00-99 at Sector 98, SAS Nagar, Mohali, Punjab, in IREO Hamlet and I request you to refund me all the payments made for the above mentioned plot alongwith due interest now I have made an alternate arrangement for my residence, so I am no more interested to purchase the above plot.

 

11. Based on the feedback given to IREO by us and other customers, I, Usha Rani, request you to take back this illegal possession letter and resubmit possession letter only after completion of points raised in section-2 or else refund our money with interest as now I have made an alternate arrangement for my residence, so I am no more interested to purchase the above plot because as per Plot’s Buyer Agreement, I can opt to Terminate the above said Plot’s Buyer Agreement for Property Number IH-Plot-00-99 at Sector 98, SAS Nagar, Mohali, Punjab, in IREO Hamlet.  

 

Thus, despite seeking refund, the opposite parties did not refund the deposited amount, which amounted to deficiency in rendering service and indulgence into unfair trade practice.

32.        The next question, which falls for consideration, is, as to what rate of interest, on the amount to be refunded to the complainant, is to be granted. As already stated above, Plot Buyer’s Agreement with the original allottee(s) was executed on 15.07.2011. The complainant purchased the unit, in question, from them (original allottees) and the onward rights/obligations in her favour were assigned on 21.03.2012 (Annexure C-5). Offer of possession on 12.05.2015 from the date of execution of the Agreement, was after 3 years 10 months and from the date of transfer of the unit in favour of the complainant, the possession offered was after a period of 3 years 2 months. Computing 42 months period in terms of Plot Buyer’s Agreement (24 months + 6 months grace period + 12 months extended delayed period), the due date for possession was 14.01.2015. As already stated above, the complainant has stated that she visited the site in April and May 2015 and found that there was no development. After receipt of the notice dated 12.05.2015 offering possession, she vide email and letter, both dated 12.06.2015, wrote to the Opposite Parties seeking refund. No doubt, the Opposite Parties are deficient in rendering service by not granting refund of the amount as requested by the complainant, nevertheless, after issuing notice vide email and letter, referred to above, the complainant could mitigate her loss by filing the consumer complaint within a period of a month or so from the date communication dated 12.06.2015 was sent to the Opposite Parties. Filing of complaint when the Opposite Parties did not respond to email/letter dated 12.06.2015 was squarely within the domain of the complainant. The complainant, however, filed the complaint on 09.02.2017 after around 19 months. Therefore, in our considered opinion, the complainant is entitled to lesser rate of interest for the period beyond 12.06.2015 + 1 month i.e. 12.07.2015 onwards. The complainant is, therefore, held entitled to interest as under:-

 

(a)	12% per annum simple interest on the amount(s)     deposited up-to 21.03.2012, w.e.f. 21.03.2012 onwards up-to 11.07.2015.
(b)	12% per annum simple interest on the amount(s)     deposited after 21.03.2012 from the date of their        respective deposits till        11.07.2015.
(c)	8% per annum simple interest on the deposited amount(s) w.e.f. 12.07.2015 onwards.

 

             Under these circumstances, compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.1,50,000/-, if granted, would be adequate to meet the ends of justice.

33.        Similarly, in the connected complaint bearing No.122 of 2017, the complainant is a subsequent purchaser, as she purchased the plot, in question, from its original allottee, namely, Gunjan Goel with whom Plot Buyer’s Agreement was executed on 06.07.2011. The rights/ obligations w.r.t. plot were transferred in favour of the complainant on 18.04.2012 (Annexure C-5). Possession, which was to be offered within maximum 42 months i.e. up-to 05.01.2015, was offered on 21.05.2015 after the stipulated period (Annexure C-7). Alleging offer of possession to be not valid and complete, the complainant sought refund and termination of the Agreement vide letter dated 29.06.2015 and email dated 12.07.2015 (Annexure C-8 colly.) (at Pages 57 to 60 of the complaint). Therefore, in this complaint, the complainant is entitled to refund of the deposited amount of Rs.66,44,512/- alongwith interest in the same manner as in the case of CC No.121 of 2017. The complainant is also held entitled to compensation in the sum of Rs.1,50,000/- lacs towards mental agony and physical harassment due to deficiency in rendering service and indulgence into unfair trade practice by the Opposite Parties.

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

35.         For the reasons, recorded above, both the complaints bearing Nos.121 of 2017 and 122 of 2017 are partly accepted, with costs. The Opposite Parties, in each of these cases, are, jointly and severally, held liable and directed in the following manner:-

Complaint Case No.121 of 2017.

(i)    To refund the amount of Rs.65,11,568/-, to   the   complainant, alongwith interest as under:-

(a)	12% per annum simple interest on the amount(s)     deposited up-to 21.03.2012, w.e.f. 21.03.2012 onwards till 11.07.2015;
(b)	12% per annum simple interest on the amount(s)     deposited after 21.03.2012 from the date of their        respective deposits till        11.07.2015;
(c)	8% per annum simple interest on the deposited amount(s)    w.e.f. 12.07.2015 onwards;

       within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties, shall be liable to pay the above amount at (i)(a), (b) & (c),, with interest @15% p.a. (simple), 15% p.a. (simple) and 11% p.a (simple) respectively, from the date of default, till realization.

(ii)   To pay an amount of Rs.1,50,000/-, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties, shall be liable to pay the above amounts, with interest @12% p.a. (simple) from the date of filing the complaint till realization.

Complaint Case No.122 of 2017.

(i)    To refund the amount of Rs.66,44,512/-, to   the   complainant, alongwith interest as uner:-

(a)	12% per annum simple interest on the amount(s)     deposited up-to 18.04.2012, w.e.f. 18.04.2012 onwards up-to 11.08.2015.
(b)	12% per annum simple interest on the amount(s)     deposited after 18.04.2012 from the date of their        respective deposits till        11.08.2015.
(c)	8% per annum simple interest on the deposited amount(s)    w.e.f. 12.08.2015 onwards.

       within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties, shall be liable to pay the above amount at (i)(a), (b) & (c), with interest @15% p.a. (simple), 15% p.a. (simple) and 11% p.a (simple) respectively, from the date of default, till realization.

(ii)   To pay an amount of Rs.1,50,000/-, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties, shall be liable to pay the above amounts, with interest @12% p.a. (simple) from the date of filing the complaint till realization.

36.        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.

37.        Certified copy of this order be placed in the file of connected complaint bearing No.122 of 2017.

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

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

Pronounced.

17.07.2017.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

Ad