Chandigarh

StateCommission

CC/418/2016

Vishal Kataria - Complainant(s)

Versus

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

Paras Money Goyal, Adv.

18 Nov 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	418 of 2016
Date of Institution	:	02.08.2016
Date of Decision	:	18.11.2016

 

Vishal Kataria son of Shri Suresh C. Kataria, R/o H.No.B-402, Sector 70, Rishi Apartment, Mohali (Pb.)

……Complainant.

Versus

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

….Opposite Parties.

Argued by:

 

Sh.  Paras Money Goyal, Advocate for the complainant.

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

 

Consumer Complaint	:	419 of 2016
Date of Institution	:	02.08.2016
Date of Decision	:	18.11.2016

 

1. Ramesh Kumar son of Sh. Tilak Raj,
2. Kulwinder Kumar son of Sh. Tilak Raj,

Both R/o H.No.4756, Darshan Vihar, Sector 68, SAS Nagar (Mohali).

……Complainants.

Versus

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

….Opposite Parties.

Argued by:

 

Sh. Paras Money Goyal, Advocate for the complainants.

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

 

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

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

SH. DEV RAJ, MEMBER.

               MRS. PADMA PANDEY, MEMBER.

 

PER DEV RAJ, MEMBER

             By this order, we propose to dispose of, following two consumer complaints:-

1	CC/418/2016	Vishal Kataria	Vs	Puma Realtors Private Ltd. & Anr.
2	CC/419/2016	Ramesh Kumar & Anr.	Vs	Puma Realtors Private Ltd. & Anr.

 

2.          Since the facts involved in the above two complaints, by and large, are the same, therefore, these complaints are being disposed of, by passing one consolidated order.

3.          Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.418 of 2016, titled as ‘Vishal Kataria Vs. Puma Realtors Private Limited and another.’

4.          The facts, in brief, are that since the complainant was not owning any residential accommodation house/ flat, in his name, and was looking for a flat for himself for residential purpose, he requested the sales staff of Opposite Party No.1 to provide a flat on 1^st Floor and accordingly, Apartment No.4, General Category, on First Floor in Juniper Court C, having super area of 1609 Sq. Ft.,  with  one  parking space was allotted to him, at total

consideration  money of Rs.51,53,990/- @Rs.3,073.23 per Sq. Ft.. An Apartment Buyer’s Agreement was also executed between the parties on 03.11.2011 (Annexure    C-1). The complainant paid total amount of Rs.49,95,483/- to the Opposite Parties as against the total sale consideration of Rs.51,53,990/-. He also had to opt for a loan from Canara Bank and he is paying an EMI of Rs.23,505/- per month. As per Clause 13.3 of the Agreement, possession of the unit, in question, was to be delivered by the Opposite Parties within 30 months from the date of the said Agreement i.e. by April 2014 and till date, possession has not been offered and there is delay of more than 28 months from the cut off date. It was further stated that as per Clause 13.4 of the Agreement, the Opposite Parties were to pay delay compensation in the event of default by the Company @Rs.7.5 per sq. ft. per month (approximately 2.70% per annum), which came to be Rs.12,067.50 per month. It was further stated that Clause 13.4 does not safeguard the interest of the complainant because if interest on the deposited amount is calculated @15% p.a. or 12% p.a., the same would come out to Rs.62,500/- and Rs.50,000/- per month respectively.

5.          It was further stated that the complainant had purchased the unit, in question, with a dream to reside in it alongwith his family as he is residing in a rented accommodation for which, he has to pay Rs.17,200/- per month towards rental besides Rs.23,800/- per month towards the monthly EMI against loan obtained. It was further stated that the Opposite Parties, in order to attract customers, also advertised that the project had been  entrusted  for  construction  to  L & T  but  the said

builder had withdrawn and some new builder, namely, M/s Akalia Constructions has been engaged, as a result whereof, the development/construction work at the site has come to a standstill. It was further stated that in the Agreement, the Opposite Parties had offered various amenities viz. solar water heating for kitchen, multipurpose hall, swimming pool, gym, badminton and basket ball courts, kids play area with seesaws, baby slides, sandpit, jogging tracks, visitors car parking, intercom facility and CCTV, which facilities have not been started to be developed in the project. It was further stated that the drop of road up-till the tower has not been constructed. It was further stated that the Opposite Parties have unilaterally constructed approximately 70 flats over existing towers thereby causing lot of inconvenience to the complainant and, as such, additional construction shall put burden on the existing common amenities. It was further stated that the complainant is apprehensive that the Opposite Parties shall not apply for regular electricity connection with the Govt. Department and shall keep on supplying the electricity at exorbitant rates to the occupants by installing generator sets. It was further stated that as per Annexure-I, annexed to the Agreement, the Opposite Parties have not taken upon themselves to provide modular kitchen and their intent is only to offer incomplete modular kitchen i.e. by providing cupboards only in the lower portion of the kitchen and not in the upper portion. It was further stated that the Opposite Parties even backed out from their commitment of providing split AC fittings in all the rooms including bedrooms. It was further stated that the acts of the Opposite Parties amounted to deficiency, in rendering service and indulgence into unfair trade practice.

6.          Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties to hand over possession of the flat, in question, complete in all respects, with all amenities including complete modular kitchen i.e. lower cupboards as well as upper cupboards with modular fittings & for providing the Split ACs provision in all the rooms; pay compensation for delayed possession as per Clause 13.4 of the Agreement, alongwith interest @15% per annum; Rs.10,00,000/- as compensation on account of harassment and mental agony;  and Rs.50,000/- as litigation charges.

7.          Opposite Party No.1, in its written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.34 in the Apartment Buyer’s Agreement dated 03.11.2011; that since the present complaint related to an agreement to sell/purchase of a residential apartment 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; 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. 

8.          On merits, it was stated that besides Rs.51,53,990/-, payment towards govt. taxes/fee/ charges viz. service tax, stamp duty, registration charges etc., as may be applicable from time to time, were also payable by the complainant. It was further stated that amount of Rs.51,53,990/- included the external development charges. It was denied that the complainant had paid Rs.49,95,483/- as against total sale consideration of Rs.51,53,990/- in as much as payment of final installment i.e. Rs.2,47,241/- towards BSP plus Rs.48,270/- towards IFMS besides Rs.6,399.46 as applicable service tax, is yet to be made by the complainant, on receipt of occupation certificate. It was further stated that in terms of Clause 13.4 of the Agreement, the complainant duly agreed to receive liquidated damages from the end of the grace period i.e. 30 months plus 6 months, till possession is actually offered. It was further stated that after start of construction in the project, the same is continuously being carried on. It was further stated that L & T had carried out majority of the development work but having found delay on the part of L & T, Opposite Party No.1 commissioned M/s Akalia Constructions (a sub-contractor of L&T) for undertaking the finishing works for Juniper Block. It was further stated that the construction work in Juniper Court Building, in which the apartment allotted to the complainant is situated, has already been completed and  finishing  work  is  in  progress  and  very  soon, Opposite Party No.1 is applying for occupation certificate for Juniper Block Apartments. It was further stated that all the amenities and facilities shall be completed and made available for the residents by the time, possession, complete in all respects, of all the apartments is handed over. It was further stated that Opposite Party No.1 never proposed to offer possession of the apartment without completing the amenities. It was further stated that Opposite Party No.1 is in process of obtaining approvals for additional areas, as agreed under Clauses 10.10 and 22.3 of the Agreement.

9.          It was further stated that Opposite Party No.1 vide application dated 26.11.2013 applied for approval of electrical layout plan and grant of NOC to the PSPCL after submitting requisite details and PSPCL duly granted NOC dated 08.07.2015. It was further stated that the Chief Electrical Inspector to Govt. of Punjab approved the electrical installations laid in the project for commission of the same vide its NOC dated 07.08.2015. It was further stated that Opposite Party No.1 duly applied online vide RID No.15250 dated 27.08.2015 for the release of electric connection for the IREO Rise Project and PSPCL duly granted feasibility clearance dated 20.11.2015 for release of load/connection on the project. It was further stated that Opposite Party No.1 requested GMADA to comply with and deposit amount of Rs.37,19,763/- with PSPCL being already paid by Opposite Party No.1 as part of EDC to GMADA vide letter dated 29.3.2016 and also deposited Bank Guarantee dated 22.3.2015 for amount of R.3,24,10,301/- plus Rs.2.97 Lacs towards Advance Consumption Deposit on 12.4.2016 in compliance to demand notice dated 28.12.2015. It was further stated that all formalities have been duly complied with and no dues remain to be paid or deposited on the part of Opposite Party No.1 towards energization of the electrical connection by PSPCL.

10.        It was further stated that Opposite Party No.1 has already constructed underground water tanks duly connected with the approved bore well, which have further been connected to the overhead tanks of each tower with pumping system to supply the water for domestic use. It was further stated that Opposite Party No.1 has already constructed and installed underground STP for the disposal of the sewage. It was further stated that it was nowhere agreed that modular kitchen comprising of both upper and lower portion would be provided. It was further stated that there was no agreement to provide Split AC fittings in all the rooms, rather on the contrary, said Agreement provides for provision for Split AC. It was further stated that Opposite Party No.1 has made provision for ACs in all the rooms. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

11.        On 04.08.2016, Sh. Ramnik Gupta, Advocate, who appeared for Opposite Party No.1 only, did not appear on behalf of Opposite Party No.2 - Managing Director of the Company, stating that since no post of Managing Director existed in the Company, therefore, there was no necessity to serve Opposite Party No.2 or file reply on its behalf.

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

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

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

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

16.        It is evident, on record, that the complainant was allotted Apartment No.004, Category General on First Floor, Juniper Court C, 3B2TS Type having tentative super area of 1609 sq. ft. (149.47 sq. mtrs.) together with one parking space, forming indivisible part thereof and Apartment Buyer’s Agreement was executed between the complainant and Opposite Party No.1 on 03.11.2011 (Annexure C-1/OP-2). The basic sale price of the unit was Rs.49,44,820/- besides External Development Charges (EDC) Rs.1,60,900/- and IFMS charges Rs.48,270/-. Thus, the total sale consideration of the unit, in question, including service tax was Rs.51,53,990/-. The payment against the aforesaid unit was to be regulated as per Payment Plan, Annexure IV (at Page 123 of the file). The complainant made payment in the sum of Rs.49,95,485.22 as is apparent from statement of accounts as on 18.07.2016 (Annexure C-2). It has been stated by Opposite Party No.1 that construction work in Juniper Court Building, in which the apartment allotted to the complainant is situated, has already been completed and finishing work is in progress. It has also been stated that all the amenities and facilities shall be completed and made available for the residents by the time, possession, complete in all respects, of all the apartments is handed over. Opposite Party No.1 also stated that it never proposed to offer possession of the apartment without completing the amenities and it is in process of obtaining approvals for additional areas, as agreed under Clauses 10.10 and 22.3 of the Agreement.

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

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 Consumer Complaint No.339 of 2016 titled ‘Sandeep Goyal Vs. M/s Puma Realtors Private Limited’ decided on 07.10.2016. Paras 13 to 20 of the said order, inter-alia, being relevant, are extracted hereunder:-

“13.        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.

                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.”

                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.”

14.        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.

15.        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.”

16.        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.

17.        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.

18.       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. 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.

19.      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. In the present case, the complainant has spent his entire  life earnings to purchase the unit, in the said project, launched by the opposite party, in the manner explained above. He is now running behind the opposite party to get his amount, legally due to be paid to him, as it failed to deliver possession of the unit, even till date. 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.

20.       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.”

                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.”

19.        In view of the above, the objection raised by Counsel for Opposite Party No.1 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.

20.        Another objection raised by Counsel for Opposite Party No.1 was that since the complainant did not buy goods and did not hire any services, and was seeking enforcement of the Agreement in respect of immovable property, therefore, only a Civil Court can decide the complaint, and consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of Opposite Party No.1, for purchasing the unit, in question, in the manner, referred to above. According to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Party No.1, it was to  hand over possession of the apartment, in question, within a period of thirty months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment of the preconditions, whichever is later (commitment period).  Section 2 (1) (o) of the Act, defines service as under:-

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

 

 

 

 

21.        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 him, as he falls within the definition of consumer, as stated above. In this view of the matter, the objection of Opposite Party No.1, in this regard, being devoid of merit, must fail, and the same stands rejected.

22.        The next objection raised by Opposite Party No.1 is that Clause 36 in the Apartment Buyers Agreement, bars the territorial jurisdiction of this Commission, to entertain and try the complaint.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainant(s), 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, under the caption “PLACE OF EXECUTION”, 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, perusal of email dated 31.12.2015 (Annexure C-4), placed on record, reveals that the same was sent        by Opposite Party No.1 from its Customer Care            Office at Chandigarh having email address: Sandeep Goyal Vs. M/s Puma Realtors Private Limited’s case (supra), wherein in Para 11, this Commission held as under:-

“11.        No doubt, in the written version, an objection was also taken by the opposite party, 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.

                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 the complainant, to file the complaint. The submission of Counsel for the opposite party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.”

             In view of above, the objection taken by Opposite Party No.1, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

23.        The next question, which falls for consideration, is, as to whether the construction of approximately 70 flats over the existing tower(s) by Opposite Party No.1 is at the cost of existing common facilities/amenities and against the agreed terms and conditions. Relevant clauses 22.3 and 10.10 in the Apartment Buyer’s Agreement read as under:-

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

 

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

 

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

24.        The next question, which falls for consideration, is, as to whether Opposite Party No.1, by not providing Split AC fitting and complete modular kitchen, was deficient in rendering service. As per Annexure I, Opposite Party No.1 was to make provision for Split AC and modular kitchen. The provision and specifications, so mentioned in Annexure-I appended to the Agreement, at Pages 119 and 120 of the file, qua the aforesaid two facilities, are extracted hereunder:-

 

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

 

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

25.        The next question, which falls for consideration, is, whether the alleged unilateral act of non-constructing of the drop road is an act of deficiency on the part of Opposite Party No.1. It (Opposite Party No.1), in its written statement has categorically denied the allegation of non-construction of the drop road, in question. It has been submitted by Opposite Party No.1 that all internal roads including the alleged road would be fully developed as per approved plan. In view of specific averment of Opposite Party No.1, we do not find any deficiency on this account at this stage.

26.        The next question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainant and whether the complainant is entitled to delivery of possession of the apartment. As stated above, according to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Party No.1, it was liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment  of   the   preconditions   whichever   is   later (commitment period). The building plans, as averred, by Opposite Party No.1 were approved on 18.01.2012 as is evident from Annexure OP-5. Computing 30 months from 18.01.2012, commitment period for handing over possession was up-to 17.07.2014. On account of force majeure circumstances, referred to in the Agreement, Opposite Party No.1 was entitled to advantage of 180 days grace period. Opposite Party No.1 has failed to place, on record, any cogent evidence or justification to seek extension of 180 days. However, it is an admitted fact that possession of the unit, in question, has not been offered, even by the date of filing the instant complaint, or even till date, for want of basic amenities at the site despite the fact that 95% of the sale consideration i.e. Rs.49,95,483/-  out of Rs.51,53,990/-, has been paid by the complainant. No doubt, Opposite Party No.1 has admitted in its written statement that the amenities and facilities shall be completed and made available for the residents by the time, possession, complete in all respects, of all the apartments is handed over, yet, it failed to place, on record, any cogent and convincing evidence, that  construction of the unit is going to be complete in the near future and also that development in area is in progress. Opposite Party No.1 was, therefore, duty bound to hand over possession within 30 months i.e. by 17.07.2014. Opposite Party No.1 has not so far applied for occupation certificate. No doubt in letter dated 31.12.2015 (Annexure C-4), Opposite Party No.1 had stated that it would be offering possession before the end of June 2016 in a phased manner, the fact remains that possession has still not been offered. The Counsel for Opposite Party No.1 could not give any firm date, by which Opposite Party No.1 would be handing over possession. Clearly there is delay in delivering possession. By making a misleading  statement, that possession of the unit, was to be delivered within the maximum period of 30 months from the date of approval of building plans and by not abiding by the commitment made despite payment of around 95% payment by the complainant, it (Opposite Party No.1) was not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant is certainly entitled to physical possession of the unit, in question.

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

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

9.      xxxxxxxxxxxxx

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

(1)         xxxxxxxxxxxxxx

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

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

28.        No doubt in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainant for delay, but it does not mean that even in the event of inordinate delay, that too without justified reasons, in completing the construction and delivering the possession, the complainant would be entitled to meagre compensation of Rs.7.50 per sq. ft. of super area, which is much less than the bank rate for loan or fixed deposit. If the argument of Opposite Party No.1 is to be accepted, it would lead to absurd situation and would give an unfair advantage to the unscrupulous builder, who might utilize the consideration amount meant to finance the project, by the buyer, for its other business venture, at nominal interest of 3 to 4 per cent, as against much higher bank lending rates. This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act.

29.        Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the case, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 18.07.2014, till delivery of possession of the unit, would meet the ends of justice.

30.             The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to him, by not delivering physical possession of the unit to him, by Opposite Party No.1, by the promised date in the Agreement i.e. by 18.07.2014. The complainant purchased the unit, with the hope to have a roof over his head alongwith with his family members, and he also raised loan from Canara Bank for making part payment of sale consideration of unit, in question, but his hopes were dashed to the ground. Even the possession of unit, in question, was not offered to the complainant, till date by Opposite Party No.1, what to speak of delivery thereof. The complainant underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of Opposite Party No.1. The compensation in the sum of Rs.10 Lacs claimed by the complainant is on the higher side. For delay in delivering possession beyond the stipulated period, the complainant has been granted interest @12% per annum till delivery of possession. Opposite Party No.1 has specifically stated that possession of the apartment will be handed over to the complainant on the old rates when booking was made. The complainant, in our considered opinion, has been adequately compensated by granting interest @12% per annum on the deposited amount for the delay period. In addition, he (complainant) will also get the benefit of escalation in the price of unit, in question. In these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainant, if granted, to the tune of Rs.1,50,000/-, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

31.        Since the complainant, with grant of 12% interest on the deposited amount, for delay period has been adequately compensated, in our opinion, no compensation on account of interest paid on loan amount and for alleged loss suffered by the complainant, in paying rent, is being awarded.

32.        In the connected Consumer Complaint No.419 of 2016 titled ‘Ramesh Kumar & Anr. Vs. Puma Realtors Private Limited & Anr.’, relating to the same project i.e. Juniper Court Tower B, the complainants have sought refund of the deposited amount i.e. Rs.52,97,185/- alongwith interest @15% per annum, compensation for delayed possession as per Clause 13.4 of the Agreement, Rs.10 Lac as compensation for harassment & mental agony and Rs.50,000/- as litigation charges. Besides other preliminary objections, as raised in Consumer Complaint No.418 of 2016, Opposite Party No.1 has raised an objection that the complainants are not consumers as they purchased the unit, in question, for investment purposes. It may be stated here that the complainants, in their rejoinder, have categorically stated that they do not own any residential house/flat in the Tricity i.e. Chandigarh, Panchkula and Mohali and the unit, in question, was booked for their own use as they are residing in a rented accommodation. It was further stated that the house in Ferozepur is their ancestral property as the complainants hale from Ferozepur. The complainants have also annexed with the rejoinder copies of bill(s)/gas connection receipt, to corroborate the fact that they are presently residing at the Mohali address. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Party No.1, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National 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 complainants, 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 complainants  fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Party No.1, in its written reply, therefore, being devoid of merit, is rejected.  

33.        The core question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainants and whether the complainants are entitled to seek refund of the amount deposited by them alongwith interest. It may be stated here that as per Clause 13.3 of the Apartment Buyer’s Agreement dated 02.09.2011 (Annexure C-1), subject to force majeure conditions and reasons, beyond the control of Opposite Party No.1, it was liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment of the preconditions imposed thereunder whichever was later. The building plans were approved on 18.01.2012 (Annexure OP-14). Period of 30 months expired on 17.07.2014. On account of force majeure circumstances, referred to above, Opposite Party No.1 was entitled to advantage of 180 days grace period. Opposite Party No.1 has failed to place, on record, any cogent evidence or justification to seek extension of 180 days. However, it is an admitted fact that possession of the unit, in question, has not been offered, by the date of filing the instant complaint, or even till date, despite the fact that the complainants had already paid an amount of Rs.52,97,185/- as against the sale consideration of Rs.54,75,790/-, for want of completion of unit and basic amenities at the site. The complainants have also placed on record letter dated 31.12.2015 (Annexure C-4), whereby Opposite Party No.1 informed them that all the amenities mentioned in the said letter shall be completed and made available for the residents by the time Opposite Party No.1 complete the hand over for all 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.”

34.        Opposite Party No.1 failed to abide by its commitment to offer possession of the unit, in question, as per Agreement i.e. by 18.07.2014 and even by the          end of June 2016 as committed in Annexure
C-4. The complainants cannot be made to wait indefinitely.  No doubt, Opposite Party No.1 has admitted, in its written statement, that it is in the process of obtaining the occupation certificate and possession, complete in all respects, of the apartment, in question, shall be handed over in near future, yet, it failed to place, on record, any cogent and convincing evidence, with regard to date, by which, construction of the unit is going to be complete. Opposite Party No.1 was duty bound to hand over possession within 30 months i.e. by 17.07.2014. Counsel for Opposite Party No.1 could not give any firm date, by which, Opposite Party No.1 would be handing over possession. Clearly there is delay in delivering possession. By making a misleading   statement, that possession of the unit, was to be delivered within the maximum period of 30 months from the date of execution of the Agreement/approval of building plans and within further extended period of 180 days and by not abiding by the commitment made, despite payment of around 95% payment by the complainants, it (Opposite Party No.1) was 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 Opposite Party No.1. 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  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. 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 Opposite Party No.1, in not handing over possession of the unit by the stipulated date or even till date, the complainants are entitled to refund of the amount deposited, alongwith interest and compensation by way of filing the instant complaint.

35.        It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.52,97,185/-  was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by Opposite Party No.1, for its own benefit. The delay, if any, in remitting 2^nd and 4^th installments, is very minor i.e. 40 days, 53 days and 82 days. Rather, Opposite Party No.1 was charging heavy rate of interest, for the period of delay in making payment of installments.   It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.52,97,185/-  alongwith interest compounded quarterly @12% from the respective dates of deposits (less than the rate of interest charged by Opposite Party No.1, in case of delayed payment), till realization. The complainants are also held entitled to compensation in the sum of Rs.2,50,000/-.

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

37.         For the reasons, recorded above, both the complaints bearing Nos.418 of 2016 and 419 of 2016 are partly accepted, with costs.

Complaint Case No.418 of 2016 titled ‘Vishal Kataria Vs. Puma Realtors Pvt. Ltd. & Anr.’

 

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

1. To hand over physical possession of  the unit, allotted in favour of the complainant, complete in all respects, including modular kitchen with cupboards above the slab also and provision for Split AC (fittings) in all bedrooms, drawing & dining room, to the complainant, within a period of four months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against him.
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc. by the complainant.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, from 18.07.2014 to 30.11.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainant  w.e.f. 01.12.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1,50,000/- (Rupees One Lac and Fifty Thousand Only) on account of mental agony and physical harassment, caused to the complainant, and Rs.35,000/- as cost of litigation, to the complainant, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

Complaint Case No.419 of 2016 titled ‘Ramesh Kumar & Anr. Vs. Puma Realtors Pvt. Ltd. & Anr.’

 

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

(i)    To refund the amount of of Rs.52,97,185/- to   the   complainants, alongwith interest @12% compounded quarterly, 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.2,50,000/- (Rupees Two Lac and Fifty Thousand only), as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainants, within a period of 45 days from the date of receipt of a certified copy of the order.

(iii)  In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then Opposite Party No.1, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% compounded quarterly, from the date of default, till realization and amount(s) mentioned in Clause (ii) above, with interest @12% p.a. (simple) from the date of filing the complaint till realization.

             However, it is made clear that in case, the complainants have 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 complainants.

38.        In view of statement given by Counsel for Opposite Party No.1 that since no post of Managing Director (Opposite Party No.2) existed in the Company, both the complaints No.418 of 2016 and 419 of 2016, against Opposite Party No.2, stand dismissed being rendered infructuous.

39.        Certified Copies of this order be placed in the file of complaint bearing Nos.419 of 2016.

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

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

Pronounced.

18.11.2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

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