Chandigarh

StateCommission

CC/356/2017

Yogeshwar Pandey - Complainant(s)

Versus

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

Narender Kaur, Adv.

03 Nov 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	305 of 2017
Date of Institution	:	07.04.2017
Date of Decision	:	3 Nov. 2017

 

Jaspreet Singh Bedi son of Sh.Sarabjit Singh Bedi, resident of House No.2353, Phase-11, Sector 65, Mohali, through his General Power of Attorney Sunny Nagpal son of Mohan Lal Nagpal, R/o Raj Mahal, Gaushalla Road, Fazilka.

 

……Complainant

V e r s u s

1.     Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Corporate Office at SCO No.6-8, First and Second Floor, Sector 9-D, Chandigarh – 160009 (India) through its Authorised Signatory/Director.
2.     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 through its Authorised Signatory/Director.

….. Opposite Parties.

Argued by: Sh. Gaurav Bhardwaj, Advocate for the complainant.

                 Sh. Ramnik Gupta, Advocate for the Opposite Parties.

===================================================

Complaint case No.	:	356 of 2017
Date of Institution	:	25.04.2017
Date of Decision	:	3 Nov. 2017

 

1. Yogeshwar Pandey son of Sh.Premnarayan Pandey.
2. Nishtha Pandey wife of Yogeshwar Pandey.

Both residents of 12 Oakter, APT-C, Somerville, New Jersy-00876, United States, currently residing at 205, Marcia Way, Bridgewater, NJ 08807, USA through their General Power of Attorney Holder Abhishek Tripathi son of Vinod Kumar Tripathi, r/o H.No.102, Sector 19-A, Chandigarh.

……Complainants

V e r s u s

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

….. Opposite Parties.

Argued by: Ms.Narender Kaur, Advocate for the complainants.

                 Sh.Ramnik Gupta, Advocate for the Opposite Parties.

 

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

 

BEFORE:  MR. DEV RAJ, PRESIDING MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

PER PADMA PANDEY, MEMBER

                After hearing arguments on 23.10.2017, it was agreed between Counsel for the parties that the facts involved in the above two complaints, by and large, are the same and therefore, the aforesaid complaints can be disposed of, by passing one consolidated order. To dictate order, facts are being taken from consumer complaint bearing No.305 of 2017, titled as ‘Jaspreet Singh Bedi Vs. Puma Realtors Private Limited & Anr.’.

2.          This complaint has been filed by the complainant, seeking possession of the flat bearing No.CCD-01-002, purchased by him, in resale, in the project of the opposite parties, launched by them, under the name and style ‘Ireo Rise’, Sector 99, SAS Nagar, Mohali, Punjab. It was specifically stated that despite the fact that the opposite parties had received substantial amount of Rs.32,62,286/- against total sale consideration of Rs.35,16,090/-, for the period from 2010 to 2014, they failed to offer and deliver possession of the said flat within a period of 30 months, as committed by them, vide Clause 13.3 of the Agreement dated 16.05.2011 i.e. on or before 15.11.2013, for want of construction and basic amenities. It was further stated that, besides as above, in order to attract the customers, the opposite parties, in the first instance, had advertised that construction of the said units, will be undertaken by a renowned Company called L & T, however, later on, they (opposite parties) withdrew it and engaged some local builders, as a result whereof, construction at the site did not take place and project could not be completed. It was further stated that there was a willful and intentional delay on the part of the opposite parties, in not offering and delivering possession of the unit, in question, to the complainant. It was further stated as per Clause No.20 of the said Agreement, time was essence in making payment of installments and as per Clause 13.4, the Company was liable to pay delay compensation @Rs.7.50 per sq. ft. per month of the super area of the unit, in the event of delay in handing over possession, which came to be Rs.12,067.50ps. per month. It was further stated that the opposite parties were trying to justify the delay in offering possession under the garb of Clause 13.4, which is most inadequate and meaningless, considering the fact that the complainant has paid Rs.35,16,090/- upon which, monthly interest @12% and 15% per annum comes to Rs.35,160/- and Rs.43,951/- per month and, therefore, Clause 13.4 does not safeguard his interest. It was further stated that Larsen & Turbo Company were withdrawn and some new construction company namely M/s Akalia Constructions had been engaged. It was further stated that after engaging the said new construction Company, development/construction work at the site has come to a standstill. It was further stated that the amenities/facilities, as promised in the Agreement, like multipurpose hall, swimming pool, gym, badminton and basket ball courts, kids play area and jogging track etc. are not even in existence.
3.         It was further stated that modular kitchen was promised but only cupboards in the lower portion of the modular kitchen have been provided and not in the upper portion. It was further stated that Split AC fittings were to be provided in all the rooms including bedroom but the opposite parties backed out from their commitment and are providing Split AC fitting only in the living room. It was further stated that the aforesaid act and conduct of the opposite parties, amounted to deficiency in providing service and adoption of unfair trade practice. It was further stated that apart from causing mental agony and physical harassment, the complainant was also caused financial loss, as he has been repaying the amount, against the loan raised by him, for making payment towards price of the said unit
4.         Hence this complaint, seeking directions to the opposite parties to hand over possession of the unit, in question, alongwith other reliefs.  
5.         Upon notice, reply was filed by the opposite parties, wherein, they took certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.34 in the Apartment Buyer’s Agreement dated 16.05.2011; that since the present complaint related to enforcement of an agreement to sell/purchase of a residential apartment i.e. an immovable property and hence, was not covered under the Act; that the complainant did not hire any services of the opposite parties, as the parties did not enter into any contract for hiring the services; that the allegations levelled in the complaint are of contractual nature and, as such, triable by Civil Court only; that this Commission has no territorial jurisdiction on account of existence of Clause 36 in the Agreement; and that the relief claimed is beyond Section 14(1)(d) of the 1986 Act. It was further pleaded that GPA holder of the complainant is not competent to defend case, on his behalf. Objection with regard to filing of complaint, by GPA holders of the complainant(s), has been taken in both the complaints, referred to above.
6.         On merits, purchase of the unit, in question, in resale and endorsement thereof, in favour of the complainants, on 21.01.2013, was not disputed. It was stated that price of the unit, in question, at the time of execution of the Agreement, was Rs.37,66,919/-, which was inclusive of basic sale price, IFMS etc. It was further stated that on account of revision in service tax, the consideration price of the unit, in question, as on date, is Rs.37,81,711.51. 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 of the unit is actually offered.  It was further stated that the complainant, vide Clause No.13.3 of the Agreement, agreed that the starting period for 30 months shall be date of the said Agreement or approval of the building plans and/or fulfillment of precondition imposed thereunder, which ever was later. It was further stated that building plans were approved on 18.01.2012 and that being so, the period for 30 months, referred to above, would not be counted from the date of the said Agreement but would be from 18.01.2012. It was further stated that possession of the unit will be offered soon.
7.         It was further stated that, as agreed between the parties, in case of failure of the opposite parties to deliver possession of the unit, within aforesaid period of 36 months, the complainant was entitled to the liquidated damages @Rs.7.50 per sq. ft. per month, of the super area of the unit, till its possession was actually offered. It was further stated that the delay compensation @Rs.7.50 per sq. ft. of the super area of the unit, was to be adjusted and reduced from the last and final installment.
8.         It was further stated that the opposite parties engaged L&T, one of the reputed construction Company, for construction of the project, in order to deliver best in class project, to its customers and the said L&T Company had carried out majority of the development work but having found delay on the part of the said construction Company, M/s Akalia Constructions (a sub-contractor of L&T) for undertaking the finishing works of the Juniper Block & Frangipani Block only and not the Cassia Court Block where the complainant was allotted unit. It was further stated that entire construction work of the apartment, in question, has been done by L&T only. It was further stated that update letter dated 30.12.2015, regarding left over work by Akalia Construction, has been attached with the written statement. It was further stated that the opposite parties 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 the opposite parties 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 the Opposite Parties have already deposited Bank Guarantee dated 22.3.2015 for R.3,24,10,301/- plus Rs.2.97 lacs towards Advance Consumption Deposit on 12.04.2016, 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 the opposite parties towards energization of the electrical connection by the PSPCL. It was further stated that the opposite parties have 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 the opposite parties have 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 cupboards 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 the opposite parties have 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 the opposite parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
9.         The parties led evidence in support of their cases.
10.         We have heard Counsel for the parties, in both the complaints, and have gone through the evidence, and record of the cases, carefully. 
11.         First, we will deal with the objection, raised by the opposite parties, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, in the application form, this Commission has no jurisdiction to entertain the consumer complaint.

                We are not going to agree with the objection raised. In a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, this Commission has elaborately dealt with this question, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/application form, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Furthermore, under similar circumstances, 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, held as under:-

“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.”

Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder, held as under:-

“We are unable to persuade ourselves to agree with the Learned Counsel.  In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon’ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon’ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors.  (Supra) still holds good, no fault can be found with the view taken by the State Commission. 

Consequently, the Appeal fails and is dismissed accordingly.”

Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements, between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

                In view of the above, objection raised by the opposite party in this regard, being devoid of merit is rejected.

12.         The next question, that falls for consideration, is, as to whether, there is a contract to sell a flat/apartment only, to the complainant and no services were to be provided as alleged, by the opposite parties to the complainant, as such, he would not fall within the definition of consumer. It may be stated here that it is not the case of the opposite parties that they sold the unit, in question, in an open auction, on “as is where is basis”. The builder/opposite parties are bound to provide necessary facilities such as roads, drainage, drinking water, sewerage, street lighting etc. etc., for full enjoyment of the same by the allottees. In Haryana State Agricultural Marketing Board vs. Bishamber Dayal Goyal and Ors., Civil Appeal No.3122 of 2006, decided on 26.03.2014, the Hon’ble Supreme Court, while placing reliance on its earlier judgment titled as Municipal Corporation, Chandigarh & Ors. vs. Shantikunj Investment (P) Ltd. & Ors., (2006) 4 SCC 109, under similar circumstances held that though it was not a condition precedent but there is an obligation on the part of the Administration to provide necessary facilities such as roads, drainage, drinking water, sewerage, street lighting etc. etc., for full enjoyment of the same by allottees. In view of above facts, the plea taken by the opposite parties, in this regard, stands rejected.
13.         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 is seeking enforcement of the Agreement in respect of immovable property i.e. a flat, therefore, only a Civil Court can decide the complaint, and consumer complaint was not maintainable. As stated above, the complainant hired the services of the opposite parties, for purchasing the unit, in question, in the manner, referred to above, on payment of sale consideration. According to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the opposite parties, they were to hand over possession of the constructed unit, in question, 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), which period had already expired, long back. Admittedly, the opposite parties failed to comply with the commitments made. There is a breach of terms and conditions of the Agreement, which amounts to deficiency in providing service. The relief sought in the complaint, are on account of deficiencies committed by the opposite parties.  Since there is a specific clause in the agreement for giving the possession of the flat within specific time frame and penalty has been provided, if the Company failed to develop the same, the complainant was well within his right to file consumer complaint against the opposite parties. 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 1986 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 1986 Act, can also be availed of by him, as he falls within the definition of consumer. In this view of the matter, the objection of the opposite parties in this regard, being devoid of merit, must fail, and the same stands rejected.

                The plea taken by the opposite parties is also bereft of merit, in view of latest judgment of the National Commission, titled as M/s. Karwa Developers & 3 Ors. Vs. Shree Vinayak Co-Operative Housing Society Ltd. & 3 Ors., First Appeal No. 980 of 2016,  decided on 3^rd  March, 2017, wherein, a similar plea of the builder was negated by it, while holding as under:-

“We also do not find any substance in the plea taken by the appellant that under clause 14(a) of the development agreement, the complainant was required to file a civil suit under the Specific Relief Act only, because they were asking for monetary relief.  The State Commission rightly stated that the relief sought in the complaint were on account of deficiencies committed by the OP Developers, vis-à-vis, the society.  Since there is a specific clause in the agreement for giving the possession of the flat within specific time frame and penalty has been provided if the developers failed to develop the same, the society was well within its rights to file consumer complaint against the OP builder.”

 

14.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident from Clause 33 of the Agreement, that the parties had agreed that “Hence this Agreement shall be deemed to have been executed at Chandigarh even if the Proposed Allottee has prior thereto executed this Agreement at any place(s) other than Chandigarh”, meaning thereby that the Agreement in question, was deemed to be signed/executed at Chandigarh. Furthermore, perusal of almost all the letters, including the payment receipts placed on record, reveal that the same were issued by the opposite parties from their Chandigarh Office, as the same bore address of the Company as “SCO 6-7-8, Second Floor, Sector 9-D, Madhya Marg, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

                No doubt, in the written version, an objection was also taken by the opposite parties that as per Clause 36 of the Agreement, the Courts at Mohali and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case. 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 parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

15.         In consumer complaint bearing No.356 of 2017, the opposite parties have taken an objection to the effect that since the complainants are residents of USA, and residing there, over a long time, as such, the unit, in question, was not purchased by them for the personal use, but for commercial purpose i.e. for earning profits, after selling the same.  It may be stated here that there is nothing, on record to show that the complainants are the property dealers and are indulged in sale and purchase of property, in India, on regular basis. In para no.3 of the complaint, it has been specifically stated by the complainants that the unit, in question was purchased by them, so that they could stay peacefully and comfortably, as and when they visit India alongwith their family. Thus, 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. In a case titled as a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs.  Nirmala Devi Gupta, 2016 (2) CPJ 316. 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 principle of law, laid down, in the aforesaid cases is fully applicable to the present case. Even otherwise, still the complainants are seeking possession of the unit, in question. The objection raised, being devoid of any substance, stands rejected.

16.         It is not in dispute that the complainant had paid an amount of Rs.36,23,115.72ps. as is evident from statement of account attached with the offer of possession letter dated 30.06.2017 (dispatched on 24.07.2017). In terms of Clause 13.3 of the Agreement since building plans were approved on 18.01.2012, 30 months period for handing over possession, expired on 17.07.2014. Possession of the unit, in question, has been offered to the complainant by the Opposite Parties only vide notice of possession dated 30.06.2017 (dispatched on 24.07.2017) i.e. during the pendency of the instant complaint. There is therefore deficiency in providing service, on the part of the opposite parties, in not offering possession of the unit, in question, by the stipulated date.

                As regards deficiency in promised amenities viz. multipurpose hall, swimming pool, gym, badminton and basket ball courts, kids play area and jogging track etc., the Counsel for the opposite parties have categorically stated that the same will be provided shortly.

                Action of the Opposite Parties in raising construction/floors on the tower, where the apartment allotted to the complainant is situated, is as agreed under Clause 10.10 and 22.3 of the Apartment Buyer’s Agreement. The complainant has not stated as to how change of contract from L&T to M/s Akalia Constructions caused prejudice to him. The Opposite Parties have specifically stated that L&T had completed majority of development work and it was to avoid delay that Akalia Constructions (a Sub-contractor of L&T) was appointed for finishing works of Juniper Block & Frangipani Block and not the Cassia Block, where complainant was allotted the unit, in question. The objection of the complainant is, therefore, devoid of merit. Further during arguments, Counsel for the complainant did not press the issues relating to change of contract from L & T to M/s Akalia Constructions and provision for the electricity, water and sewerage.

17.         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 the opposite parties, they were liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement) or approval of building plans and/or fulfillment  of   the   preconditions   whichever   is   later (commitment period). Admittedly, the building plans were approved on 18.01.2012 i.e. after execution of Buyer’s Agreement on 16.05.2011. 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, the opposite parties were entitled to further 180 days grace period after the expiry of commitment period, for unforeseen delays in obtaining the Occupation Certificate etc. from the Competent Authority. In the instant case, occupation certificate has not been obtained by the opposite parties, as there is nothing on record, in that regard. However, the Opposite Parties without getting occupation certificate, applied for the issuance of partial completion Certificate in August 2016 i.e. after expiry of 180 days grace period and the same has been received by them on 30.06.2017. Therefore, in absence of any cogent evidence or justification to seek extension of 180 days by the opposite parties, they were not entitled to grant of 180 days grace period. Further, advantage of 180 days grace period would have been admissible to the opposite parties, had they applied for the occupation certificate, during the aforesaid period of 180 days. Possession of the unit, in question, has been offered to the complainant vide letter dated 30.06.2017 (dispatched on 24.07.2017) i.e. after expiry of extended delay period of 12 months and during the pendency of the instant complaint. On the other hand, the Opposite Parties were duty bound to hand over possession within 30 months from 18.01.2012 when building plans were approved i.e. by 17.07.2014. Clearly there is delay in delivering possession of the unit, to the complainant. By making a misleading  statement, that possession of the unit, was to be delivered within the period as discussed above, and by not abiding by the commitment made, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant is certainly entitled to physical possession of the unit, in question.
18.         Now coming to the dispute with regard to modular kitchen, this issue stood decided by this Commission in a similar case titled as Sh. Karan Pal Kandhari Vs. M/s Puma Realtors Private Ltd. and another,  Consumer Complaint No. 236 of 2016, decided on 15.09.2016. In that case, the opposite parties were held deficient on this count, while holding as under:- 

“The next question, which falls for consideration, is, as to whether Opposite Party No.1 by not providing complete modular kitchen was deficient in rendering service. As per Annexure I, Opposite Party No.1 was to make provision for modular kitchen. The provision and specifications, so mentioned in Annexure-I appended to the Agreement, at Page 115 of the reply, qua the aforesaid facility, is extracted hereunder:-

KITCHEN	MODULAR KITCHEN	Fitted modular Kitchen, SS Sink, CP fittings, provision for RO system, built-in hob/chimney.
	COUNTERTOP	Granite

 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 its own conclusion that modular kitchen would be complete, even if the cupboards 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. Therefore, Opposite Party No.1 is clearly deficient in not providing this facility in the Apartment. Not only this, Opposite Party No.1 sought acceptance of complainant to provide this facility at additional cost, which amounted to unfair trade practice. Opposite Party No.1 is, therefore, liable to provide modular kitchen with cup-boards upper the slab also”.

                In the present case also, the opposite parties, were to provide a similar modular kitchen with same specifications/ fittings, as was to be provided in the aforesaid case. As such, non-provision of the modular kitchen, as promised, is a grave deficiency on the part of the opposite parties.  Opposite parties are therefore liable to provide modular kitchen with cup-boards upper the slab also.

19.         As far as the provision of split AC in all the rooms are concerned, it may be stated here that the opposite parties have admitted in their written reply that the same has been provided by them, in all the areas, as mentioned in the Agreement. However, if, at any stage, it is found that provision of the split AC has not been provided, by the opposite parties, as promised, the complainant shall be at liberty to file execution application in that regard. 
20.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if yes, at what rate, for delay in offering and delivering physical possession of the unit beyond the time stipulated in the Agreement. 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 the Opposite Parties is to be accepted, it would lead to an 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.

                What relief can be granted to a consumer, in case of delay, in offering possession of the unit purchased, came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016, wherein dealing with similar issue, it was observed as under:-

“What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Hon’ble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Hon’ble National Commission, on 06.05.2016, wherein, it was argued by the project proponent that at the maximum, as provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:-

“Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including  Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015.  Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.”

Not only this, in another case, titled as 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.”

Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice.”

                Not only this, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice. Thus, keeping in view the principle of law laid down by the Apex Court and also the Hon'ble National Commission, in the cases, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 17.07.2014, till actual delivery of possession of the unit, would meet the ends of justice.

                However, in this complaint (CC No.305 of 2017), during arguments, it has been specifically stated by Counel for the complainant that possession so offered, vide letter dated 30.06.2017, during pendency of the complaint, is still incomplete. As such, it is made clear that since in the said offer of possession, it has been informed to the complainant to submit necessary documents and also to clear his dues within a period of 45 days from 30.06.2017, infact 24.07.2017, when the said letter was actually dispatched and also further 30 days are required to complete finishing work therefrom, as such, the said amount of compensation shall be paid till expiry of such period i.e. 75 days from 24.07.2017 or till the date, when possession of the unit, in actually handed over to the complainant, after completing finishing works.

21.         In the connected case, the Apartment Buyer’s Agreement was executed on 16.01.2012 and building plans relating to this project were approved on 18.01.2012. Therefore, computing 30 months from the date of approval of building plans i.e. 18.01.2012, in this case also, possession of the unit, in question, was to be delivered by the opposite parties by 17.07.2014 but the same was also offered vide letter dated 30.06.2017 (dispatched on 08.08.2017) i.e. during the pendency of the instant complaint. Thus, the delay in delivering possession would come up-to (08.08.2017 + 45 days + 30 days) 21.10.2017.
22.         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 the opposite parties, by the promised date in the Agreement i.e. by 17.07.2014. The complainant purchased the unit, with the hope to have a roof over his head alongwith family members  but his hopes were dashed to the ground. Still, incomplete possession of the unit, in question, has been offered to him (complainant) during the pendency of the instant complaint, on 30.06.2017, vide notice of possession. The complainant underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the opposite parties. Delay of more than three years in delivering possession of the unit, is a clear act of deficiency on the part of the opposite parties and loss to the complainant. However, the compensation in the sum of Rs.10 lacs claimed by the complainant is clearly on the higher side. 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/-.
23.         As far as the objection with regard to complaint(s) filed by GPA holders of the complainant(s) is concerned, it may be stated here that this issue has already been dealt with by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in a case titled “Consumer Education & Research Society & Anr v/s New India Assurance Co Ltd & Ors” [I (2008) CPJ 317 (NC), wherein it was held that an over-technical view should not be taken by the Fora and a consumer complaint can even be filed by the parent of an aggrieved person or his Power of Attorney holder. Even otherwise, it may be stated here that the Consumer Protection Act, 1986, is a beneficial legislation, primarily meant to protect the interests of the consumers. It is settled principle of law, that every lis should normally be decided, on merits, rather than declining relief on hyper-technicalities. When the technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, then to thwart the same. As such, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.
24.         No other point, was urged, by Counsel for the parties.
25.         For the reasons, recorded above, both the complaints are partly accepted with costs, in the following manner:-

Consumer complaint bearing no.305 of 2017. The opposite parties, jointly and severally are 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 30 days, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against the complainant and submission of required documents.
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 @12% p.a., on the entire deposited amount, for the period from 18.07.2014 till 30.11.2017, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @15% p.a., from the date of default till realization.
4. To pay compensation @12% p.a., on the entire deposited amount, w.e.f. 01.12.2017, onwards, till actual delivery of actual physical possession of the unit, by the 10^th of the following month, failing which, the same shall also carry penal interest @15% p.a., from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1.50 lacs , on account of mental agony and physical harassment, caused to the complainant, and Rs.33,000/- 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 this complaint till realization.

Consumer complaint bearing no.356 of 2017. The opposite parties, jointly and severally are directed as under:-

1. To hand over physical possession of the unit, allotted in favour of the complainants, 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 complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, on payment of the amount, legally due against the complainants and submission of required documents.
2. To execute and get registered the sale deed(s), 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 complainants.
3. To pay compensation @12% p.a., on the entire deposited amount, for the period from 18.07.2014 till 21.10.2017 (as explained above), within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @15% p.a., from the date of default till realization.
4. Further, for failure of the opposite parties to deliver possession within 30 days from the date of making payment/submission of documents by the complainants, for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount(s) for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
5. To pay compensation, in the sum of Rs.1.50 lacs , on account of mental agony and physical harassment, caused to the complainant, and Rs.33,000/- 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 this complaint till realization.

26.         However, it is made clear that the amount of compensation, for the period of delay, if any, already paid or credited by the opposite parties, in the account of the complainant(s) in both the complaints, shall be deducted/adjusted accordingly, at the time of making payment, by them (opposite parties) to the complainants.
27.         Certified Copy of this order be placed in the connected file.
28.         Certified Copies of this order be sent to the parties, free of charge.
29.         The file be consigned to Record Room, after completion.

Pronounced.

3 Nov. 2017

Sd/-

[DEV RAJ]

PRESIDING MEMBER

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

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STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	356 of 2017
Date of Institution	:	25.04.2017
Date of Decision	:	3 Nov. 2017

 

1. Yogeshwar Pandey son of Sh.Premnarayan Pandey.
2. Nishtha Pandey wife of Yogeshwar Pandey.

Both residents of 12 Oakter, APT-C, Somerville, New Jersy-00876, United States, currently residing at 205, Marcia Way, Bridgewater, NJ 08807, USA through their General Power of Attorney Holder Abhishek Tripathi son of Vinod Kumar Tripathi, r/o H.No.102, Sector 19-A, Chandigarh.

……Complainants

V e r s u s

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

….. Opposite Parties.

Argued by: Ms.Narender Kaur, Advocate for the complainants.

                 Sh.Ramnik Gupta, Advocate for the Opposite Parties.

 

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

 

BEFORE:  MR. DEV RAJ, PRESIDING MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

PER PADMA PANDEY, MEMBER

                Vide our separate detailed order of the even date, recorded in consumer complaint bearing No.305 of 2017, titled as ‘Jaspreet Singh Bedi Vs. Puma Realtors Private Limited & Anr.’this complaint has been partly accepted with costs.

2.         Certified copy of the order passed in consumer complaint bearing No. 305 of 2017, shall also be placed on this file.
3.         Certified copies of this order, alongwith the main order passed in consumer complaint bearing No. 305 of 2017, be sent to the parties, free of charge.
4.         The file be consigned to Record Room, after completion.

 

                Sd/-                                         Sd/-

(DEV RAJ) PRESIDING MEMBER

(PADMA PANDEY) MEMBER

 

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