Chandigarh

StateCommission

CC/9/2016

Hardeep Kaur - Complainant(s)

Versus

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

Arun Kumar & Varun Bhardwaj

27 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	09 of 2016
Date of Institution	:	04.01.2016
Date of Decision	:	27.06.2016

 

1. Hardeep Kaur wife of Sh.Amrit Pal Singh, through Attorney Amrit Pal Singh, resident of House No.227, Ajit Nagar, Part 2, Patiala.
2. Ramesh Kumar Jain son of Sh.Roshan Lal Jain, resident of House No.263-A, Ajit Nagar, Patiala, Punjab.
3. Janeshwar Kumar Jain son of Sh.Waliati Ram Jain, resident of House No.B-5/34, Rang Rasayan Apartment, Rohini, Sector 13, Delhi.

……Complainants

V e r s u s

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

            ....Opposite Parties

 

Argued by:       Sh.Arun Kumar and Sh. Varun Bhardwaj, Advocates for the complainants.

                        Sh.Ramnik Gupta, Advocate for the opposite parties.

 

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

 

Complaint case No.	:	10 of 2016
Date of Institution	:	04.01.2016
Date of Decision	:	27.06.2016

 

1. Timple Jain wife of Sh.Mohit Jain, resident of House no.12C, Hira Nagar, Patiala, Punjab, through Attorney Rajat Jain son of Sh.Rakesh Kumar Jain.
2. Rajat Jain son of Sh.Rakesh Kumar Jain, resident of House No.12C, Hira Nagar, Patiala, Punjab.
3. Anshu Rattan son of Muhinder Kumar Rattan, resident of House No.70, Officer Colony, Patiala, Punjab.

……Complainants

 

V e r s u s

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

            ....Opposite Parties

 

Argued by:       Sh.Arun Kumar and Sh. Varun Bhardwaj, Advocates 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 MR.DEV RAJ, PRESIDING MEMBER

            By this order, we propose to dispose of, two consumer complaints, bearing no.09 of 2016 titled as Hardeep Kaur and ors. Vs. Puma Realtors Pvt. Ltd. and another and 10 of 2016 titled as Timple Jain and ors. Vs. Puma Realtors Pvt. Ltd. and another. However, except the fact that, in consumer complaint bearing no.10 of 2016, the unit allotted in favour of the complainants, was cancelled twice, other issues involved in both the cases aforesaid, except minor variations, here and there, of law and facts are the same. Arguments were heard in common, in the above cases.

2.       Under above circumstances, to dictate order, facts are being taken from consumer complaints, bearing no.09 of 2016 titled as Hardeep Kaur and ors. Vs. Puma Realtors Pvt. Ltd. and another. The complainants, vide application dated 27.06.2011, applied to the opposite parties, for purchase of a residential plot, in their project, namely IREO Hamlet, Sector 98, Mohali, Punjab, for their residential purpose. Alongwith the application form, an amount of Rs.7,50,000/-, was deposited by the complainants, as booking amount. Vide provisional allotment letter dated 27.06.2011 Annexure C-5, the complainants were allotted residential plot bearing no.168, measuring 250.59 square yards, in the said project, @Rs.27,000/- per square yard. Plot Buyer’s Agreement (in short the Agreement) Annexure C-8 was executed between the parties, on 17.09.2011. Basic price of the plot was fixed at Rs.67,65,930/-. Apart from that, the complainants were also required to pay Rs.1275.10/- per square yard, towards External Development Charges (EDC), Rs.500/- per square yard, towards Preferential Location Charges (PLC) and Rs.350/- per square yard, towards Interest Free Maintenance Security (IFMS). Thus, in this manner, in all, the complainants were required to pay Rs.72,98,460/-, towards entire sale consideration of the said plot. For making payment, time linked payment plan was accepted by the complainants, according to which, they were required to make 95% payment of the total sale consideration, within 18 months, from the date of allotment of plot. Balance amount of 5% of the total sale consideration was to be paid on delivery of possession of the plot. It was stated that the complainants, in all, had paid an amount of Rs.28,94,318/- towards part price of the plot, in question, as and when demanded by the opposite parties. 
3.       It was further stated that as per Clause 11.1 of the Agreement, after development, physical possession of the plot was to be delivered to the complainants within 24 months, with grace period of 6 months i.e. not later than 30 months, from the date of execution of above Agreement i.e. on or before 16.03.2014. However, possession of the plot was not delivered to the complainants, by the stipulated date. It was further stated that when after making payment of substantial amount of Rs.28,94,318/- towards part price of the plot, in question, possession of the plot was not delivered to the complainants, they visited the site, in December 2014, as well as in the last week of April 2015, and found that there was no development. Even basic amenities such as roads, water lines, sewer lines, electricity etc., were not in existence at the site.
4.       It was further stated that the complainants approached the opposite parties, through every possible means, with a request to complete the development work and deliver possession of the plot, complete in all respects, but they failed to do so, and on the other hand, gave a threat to cancel the allotment thereof. In the alternative,  request made by the complainants for making refund of the amount deposited, was not acceded to, by the opposite parties.
5.       It was further stated that the aforesaid acts of the opposite parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the opposite parties, to refund the amount of Rs.28,94,318/-, alongwith interest @24% p.a., from the respective dates of deposits till realization; pay compensation, to the tune of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.1 lac.
6.       Upon notice, reply was filed by the opposite parties, wherein, it was pleaded 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. It was further pleaded that since the plot, in question, was purchased by the complainants for commercial purpose i.e. for investment purpose, as such, they did not fall within the definition of consumer. It was further pleaded that the consumer complaint was not maintainable, as the matter relates to an agreement to sell/purchase of a plot i.e. of immoveable property. It was further pleaded that consumer complaint was not maintainable, and only a Civil Court, could adjudicate the dispute, in question. It was further pleaded that there was no promise to provide any service, as alleged. The contract was only to sell a piece of land to the complainants. It was further pleaded that jurisdiction issues be decided as preliminary issues and only thereafter, decision be taken on merits.
7.       On merits, it is admitted that the complainants had purchased the plot, in question, from the opposite parties. It  was stated that possession of the plot was to be delivered within 30 months, from the date of execution of the Agreement, plus 12 months more, against payment of delayed penalty amount, i.e. after 42 months, subject to completion of all the obligations by the complainants, contained in the terms and conditions of the same (Agreement) and not otherwise. It was further stated that the complainants had not made timely payments of sale consideration towards the plot, and rather, after making part payment, they had stopped making payment of the remaining installments. It was further stated that development work at the site, commenced on 01.05.2013, and, thereafter, demand was raised vide letter dated 30.04.2013, but the complainants did not make the payment thereof, for a long time. Several reminders, in the matter, were also sent to the complainants, but to no avail, as a result whereof, final opportunity was given to them vide letter dated 05.11.2013, but even then, needful was not done. It was further stated that, left with no other option, the allotment of plot, in question, stood cancelled and the Agreement, in question, was terminated, vide cancellation/termination advice dated 23.01.2014. It was further stated that, thereafter, the complainants approached the opposite parties on 28.02.2014 and requested to restore the plot, in question. They even agreed to make payment of the balance amount, which was due against them, for which, they issued four cheques, of different amounts. It was further stated that, however, out of the four cheques, two cheques when presented, were dishonoured by the Bank concerned, for the reasons “insufficient funds”. This fact was immediately brought to the notice of the complainants, but they did not turn back and on the other hand, approached this Commission, by way of filing the instant complaint. It was further stated that development work was complete; all the basic amenities had been provided at the site and also necessary permissions/sanctions had been obtained by the opposite parties, as a result whereof, they had even offered possession of units in the said project, to various allottees in the year 2015, who had complied with all the terms and conditions of the Agreement. It was further stated that the opposite parties terminated the Agreement and cancelled the allotment of plot, in question, strictly as per the terms and conditions of the agreement, as the complainants miserably failed to pay the remaining amount towards the same, despite giving them number of opportunities. It was further stated, that neither there was any deficiency, in rendering service, on the part of the opposite parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
8.       The parties led evidence, in support of their cases.
9.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the cases, carefully. 
10.        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 jurisdiction to entertain the consumer complaint or not. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, 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.”

            Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Agreement, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in  Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). 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, and also in the face of ratio of judgments, referred to above, the arguments raised by the Counsel for the opposite parties, stand rejected.

11.        The next question that falls for consideration, is, as to whether, the plot, in question, was purchased by the complainants, for their personal use, or they were speculators, as alleged by the opposite parties. No doubt, to defeat claim of the complainants, an objection was raised by the opposite parties, to the effect that the complainants, being investors, had purchased the plot, in question, for earning profits, as and when there is escalation in the prices of real estate, as such, they would not fall within the definition of consumer, as defined under Section 2(1)(d) of 1986 Act. It may be stated here that there is nothing, on the record to show, that the complainants are the property dealers and are indulged in sale and purchase of property, on regular basis. On the other hand, it has been clearly averred by the complainants, in para no.1 of their complaint that the plot, in question, was purchased by them, for their residential purpose. 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. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the 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,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, in their written reply, therefore, being devoid of merit, is rejected.  
12.        The next question, that falls for consideration, is, as to whether, there is a contract to sell a piece of land i.e. a plot only, to the complainants and no service was to be provided as alleged, by the opposite parties, to them (complainants), as such, they would not fall within the definition of consumer. It may be stated here that the stand taken by the opposite parties, needs rejection, in view of Clause  21.2 of the Agreement, which reads thus:-

“The Company shall carry out the internal development within the IREO Hamlet project, which inter alia includes laying of roads, water lines, sewer lines, electrical lines etc. However, it is understood that external linkages for these services beyond the periphery of the IREO Hamlet project, such as water lines, sewer lines, storm water drains, roads, electricity, horticulture and other such integral parts are to be provided by the State Government and/or the local authorities.”

13.       Perusal of contents of the afore-extracted Clause, clearly goes to reveal that it was specifically stated that the Company shall carry out internal development within the project, which included laying of roads, water lines, sewer lines, electrical lines etc., however, external development thereof, will be the responsibility of State Government. Above Clause leaves no doubt that possession of fully developed plot, over which construction can be raised, was a promise made by the opposite parties, to the complainants. Not only as above, IREO project is a part of Mega Housing Project. If it is so, it cannot be said that piece of land will be sold to a consumer, without making any development. The said Mega Housing Project is covered under the provisions of Punjab Apartment and Property Regulation Act 1995. Thus, since, it was bounden duty of the opposite parties to provide basic facilities and infrastructure to make the plot habitable, as such, it cannot be said that only a piece of land i.e. only a plot was to be delivered to the complainants, without any amenities/facilities. Under similar circumstances, in Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  the National Commission, held as under:-

“In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the appellant-company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/ amenities, lay-out approvals etc. was a ‘service’ within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute. Having regard to the nature of the transaction between the appellant-company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted ‘service’ within the meaning of the Act. It was not a case where the appellant-company was selling the given property with all 7 Page 8 advantages and/or disadvantages on “as is where is” basis, as was the position in U.T. Chandigarh Administration and Anr. v. Amarjeet Singh and Ors. (2009) 4 SCC 660. It is a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents”.

            Besides this, 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 Municipal Corporation, Chandigarh &Ors. vs. Shantikunj Investment (P) Ltd. & Ors., (2006) 4 SCC 109, 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.

14.       The next question that falls for consideration, is, as to whether, since the complainants sought enforcement of the Agreement, in respect of the immovable property, only a Civil Court can decide the complaint, and as such, consumer complaint was not maintainable. It may be stated here, that the complainants hired the services of the opposite parties, for purchasing the plot, in question, in the manner, referred to above. According to Clause 11 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the opposite parties, they were to deliver physical possession of the unit, within a maximum period of 30 months, as explained above, from the date of execution of the same (Agreement), with complete basic amenities, as provided in Clause 21.2. Section 2 (1) (o) of the Act, defines service as under:-

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

            From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. case (supra), 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, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have 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 them, as they fall within the definition of consumer, as stated above. In this view of the matter, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

15.       The next question, that falls for consideration, is, as to whether, the opposite parties were justified in cancelling the allotment of plot, in question, or not. It may be stated here that it is an admitted case, that the complainants after making part payment towards the said plot, stopped making further payments, to the opposite parties, despite the fact that number of reminders, in the matter were sent by them (opposite parties). No doubt, on the other hand, to justify their stand taken, with regard to stopping of remaining payment towards the said plot, a plea has been taken by the complainants, in their complaint, that there was no development and also basic amenities were also not in existence at the site. We are not inclined to accept this plea raised by the complainants. It is very significant to mention here that, not even an iota of evidence, has been produced on record, to prove that at any point of time, the complainants raised the issue of non-development and non-existence of basic amenities, at the site, with the opposite parties, before filing the consumer complaint. Not even a single document has been placed on record, to convince this Commission, that they ever visited the site, to see the development work and existence of basic amenities. Had the complainants visited the site, to see the development and basic amenities, and had they found the same missing, they would have definitely written a letter/email to the opposite parties, with regard to the same, but the record reveals that nothing sort of that, has been provided. It is for the first time, that a plea has been taken by the complainants in their complaint, that they did not make the payment of remaining amount, towards the said unit, as there was no development and basic amenities at the site. It may be stated here that to prove the stand of non-development and non-existence of basic amenities at the site, the complainants were required to place on record, cogent and convincing evidence, in the shape of any letter/email or any correspondence done by them, in the matter, with the opposite parties, but they failed to do so. As such, their stand with regard to non-development and non-existence of basic amenities at the site, goes unproved, as far as the present complaint is concerned.

            At the same time, the opposite parties have taken a specific stand, to the effect that it was not that there was no development or that basic amenities were not in existence at the site, but on the other hand, the complainants were not in a financial capacity to pay the remaining amount towards the said plot, as such, they opted to rescind the contract. To prove their stand, the opposite parties have placed reliance upon demand notice dated 30.04.2013 Annexure OP-4, sent to the complainants, for making payment of Rs.11,29,966.28Ps., which became due towards fourth installment, on start of development work at the site. However, when the said payment was not made by the complainants, reminders dated 31.05.2013 Annexure OP-5, 21.06.2013, Annexure OP-6, followed by final notice dated 12.07.2013 Annexure OP-7 were also sent by the opposite parties, but to no avail. Even, vide letter dated 05.11.2013 Annexure OP-8, last and final opportunity for making payment of amount due, was given to the complainants, by the opposite parties, but despite that they failed to make the said payment, for the reasons best known to them, which remained unexplained before this Commission, at the time of arguments. Thereafter, left with no other alternative, the opposite parties terminated the Agreement and cancelled the allotment of plot, in question, vide letter dated 23.01.2014. Not only this, thereafter, the complainants approached the opposite parties with a request to restore the allotment of plot, in question, and submitted four cheques dated 20.02.2014 (one cheque) and 22.02.2014 (three cheques) of different amounts, which were payable by them, however, out of the said four cheques, two cheques bearing nos.118986 in the sum of Rs.2 lacs and 118987 in the sum of Rs.1,76,633/-, were dishonoured, when presented before the Bank concerned, on account of “funds insufficient”, intimation whereof was given to them (complainants), by the opposite parties, but even then, they did not bother. The sequence of events clearly goes to prove that it was on account of act and conduct of the complainants, in not making payment of the remaining amount, towards the said plot, to the opposite parties, despite the fact that various reminders were sent to them, and when they (complainants) failed to do so, left with no alternative, the allotment of plot, in question, was cancelled by the opposite parties. There was thus, breach of the terms and conditions of the Agreement,  on the part of the complainants, and as such, the stand taken by them (complainants) that they had stopped making payment because there was no development or basic amenities at the site, in the absence of any cogent and convincing evidence, being devoid of merit, is rejected. In view of above, it is held that, in those circumstances, the opposite parties were legally justified, to terminate the Agreement and cancel the allotment of plot, allotted in favour of the complainants. There was, thus, no deficiency in rendering service, or adoption of unfair trade practice, on the part of the opposite parties, on this count. 

16.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount deposited with the opposite parties, on account of the reason that the plot, in question, allotted in their favour, was cancelled, and, if yes, to what extent. It is an admitted fact and as has been held above, that allotment of the plot, in question, was rightly cancelled by the opposite parties, as the complainants breached the terms and conditions of the Agreement, as they stopped making payments, after making part payment, towards the same, meaning thereby they rescinded the contract/ Agreement. Thus, once the complainants had rescinded the contract, their case with regard to refund of the deposited amount was to be dealt, in accordance with Clause 19.3 of Agreement, which says that in case of termination of the contract, on account of default in making payment towards the said plot, the opposite parties were entitled to forfeit the earnest money to the extent of 15% of the sale consideration, out of the deposited amount, and thereafter, were liable to refund the amount paid by the allottees, without any interest. However, in the present case, not even a single penny has been refunded to the complainants, by the opposite parties, after the allotment of plot, in question, was cancelled by them, in January 2014. To the contrary, now the opposite parties, have taken a wrong stand, in para nos.14,15, 20 and 21 of their written version, that the complainants are not entitled to refund of the amount, deposited by them.

            In the first instance, it may be stated here that, no doubt, as per Clause 19.3 of Agreement, the opposite parties have made themselves, entitled to forfeit earnest money to the extent of 15% of the sale consideration, out of the deposited amount, in case of cancellation of the unit, in question, yet, in our considered opinion, an amount exceeding 10% of the total price of the unit/property, cannot be forfeited by the opposite parties; it being unreasonable, unless they show that they had suffered loss to that extent of the amount to be forfeited by them. The Counsel for the complainants relying upon a case titled as DLF Limited vs. Bhagwanti Narula, Revision Petition No. 3860 of 2014, decided by the Hon’ble National Commission on 06.01.2015, pleaded that the opposite parties could forfeit 10% of the sale consideration. In para no.11 of the aforesaid case, the National Commission held as under:-

“11.    It was contended by the learned Counsel for the Petitioner Company that since the complainant had specifically agreed to deliver 20% of the sale price as earnest money, the forfeiture to the extent of 20% of the sale price cannot be said to be unreasonable, the same being inconsonance with the terms agreed between the parties. This was also his contention that so long as the Petitioner Company was acting as per the terms and conditions agreed between the parties, it cannot be said to be deficient in rendering services to the complainant. We, however, find ourselves unable to accept the aforesaid contention, since, in our view, forfeiture of the amount which cannot be shown to be a reasonable amount would be contrary to the very concept of forfeiture of the earnest money.  If we accept the aforesaid contention, an unreasonable person, in a given case may insert a clause in Buyers Agreement whereby say 50% or even 75% of the sale price is to be treated as earnest money and in the event of default on the part of the Buyer; he may seek to forfeit 50% of the sale price as earnest money.  An Agreement for forfeiting more than 10% of the sale price, in our view, would be invalid since it would be contrary to the established legal principle that only a reasonable amount can be forfeited in the event of default on the part of the Buyer.  In Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.- (1996) 4 SCC 704, the Hon’ble Supreme Court accepted the contention that in an appropriate case, the Consumer Forum without trenching upon acute disputed question of facts may decide the validity of the  terms of the contract based upon the fact situation and may grant relief, though, each case depends upon its own facts.”

            It is therefore held that the opposite parties could forfeit an amount to the extent of 10% of the sale consideration i.e. Rs.7,29,846/- (10% of sale consideration of Rs.72,98,460/-) out of the deposited amount of Rs.28,94,318/-.

            Except the amount of Rs.7,29,846/-, aforesaid, it is, further held that the opposite parties are not entitled to forfeit any other amount such as interest; brokerage amount etc.,  if any, in view of the principle of law laid down, in DLF Universal Limited Vs. Nirmala Devi Gupta`s case (supra), wherein, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in para no.11, held that the Revision Petitioner was not entitled to charge interest as non-refundable amount on the subsequent installments in the wake of cancellation of plot. Para no.11 of that order reads thus:-

“11.       In so far as interest on delayed payments, stated to be non-refundable amount in the agreement is concerned, the OP deducted a sum of Rs.3,65,479.25ps in the cancellation letter. It is observed in this regard that the complainant made payments of a sum of Rs.12 lakh at the time of initial booking and then made two further payments in the last week of June 2011. Since no further payments were made, as per the terms and conditions of the allotment as contained in Para 65 of the plot-buyers’ agreement, the OP was well within its rights to initiate the process of cancellation of the plot after the first default in making payment of an instalment. In its own wisdom, if it decided not to do so immediately, it is not entitled to charge interest as non-refundable amount on the subsequent instalments in the wake of cancellation of plot. The letter of cancellation dated 23.05.2012 makes it clear that the plot-buyers’ agreement if executed, stood cancelled and the allottee shall not have any lien or right on the said property. It is held, therefore, that the OP cannot deduct a sum of Rs.3,65,479.25ps as non-refundable amount from the money deposited by the complainant.”

            The principle of law, laid down, in the aforesaid case, is fully applicable to the instant case. Thus, in our considered opinion, forfeiture of a sum of Rs.7,29,846/- is adequate enough to compensate the opposite parties, on account of loss, if any, including brokerage charges.

17.       In view of above, out of the total deposited amount of Rs.28,94,318/-, the opposite parties could forfeit a sum of Rs.7,29,846/- only and the balance amount was refundable to the complainants. As such, the complainants were entitled to the refund of an amount of Rs.21,64,472/- i.e. [Rs.28,94,318/- minus (-) Rs.7,29,846/-]. It is very significant to mention here that, when the opposite parties cancelled the allotment of plot, in question, vide their letter dated 23.01.2014, after forfeiting 10% of sale consideration, they ought to have been refunded balance amount to the complainants, but they failed to do so and on the other hand, have been utilizing the same, for the last about more than two years, for their own benefit. 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). By not refunding the aforesaid amount of Rs.21,64,472/- (this includes a sum of Rs.4,76,633/- deposited by the complainants, vide cheques dated 22.02.2014, received by the opposite parties, on 28.02.2014), immediately, after the cancellation of allotment of plot, in question, the opposite parties indulged into unfair trade practice and the same also certainly amounted to deficiency, in rendering service, on their part. The complainants are, thus, entitled to refund of an amount of Rs.21,64,472/- alongwith interest @12% per annum from 23.01.2014/28.02.2014 i.e. the date of issuance of cancellation letter Annexure C-3.
18.       No other point, was urged, by Counsel for the parties.     
19.       For the reasons recorded above, both the complaints are partly accepted, with costs. The opposite parties, jointly and severally, are directed as under:-

Consumer complaint, bearing no.09 of 2016 titled as Hardeep Kaur and ors. Vs. Puma Realtors Pvt. Ltd. and another:-

 

1. To refund the amount of   Rs.21,64,472/- to  the complainants, (Rs.16,87,839/- plus (+) Rs.4,76,633/-) alongwith interest @12% p.a., from 23.01.2014 and 28.02.2014 respectively.
2. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants.
3. The payment of awarded amounts mentioned at sr.nos.(i) and (ii), shall be made by the opposite parties, to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, they (opposite parties) shall be liable to pay the amount mentioned at sr.no.(i), alongwith penal interest @15% p.a. instead of @12% p.a., from 23.01.2014/28.02.2014 and interest @12% p.a., on the amount mentioned at sr.no. (ii), from the date of filing of this complaint, till realization.

 

Consumer complaint, bearing no.10 of 2016 titled as Timple Jain and ors. Vs. Puma Realtors Pvt. Ltd. and another:-

 

1. To refund the amount of   Rs.29,44,977/- [Rs.7,29,846/- (10% of total sale consideration of Rs.72,98,459/-) minus (-) Rs.36,74,823/- (deposited amount)] to  the complainants, alongwith interest @12% p.a., from 05.01.2015 i.e. the date of issuance of cancellation letter Annexure OP-13.
2. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants.
3. The payment of awarded amounts mentioned at sr.nos.(i) and (ii), shall be made by the opposite parties, to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, they (opposite parties) shall be liable to pay the amount mentioned at sr.no.(i), alongwith penal interest @15% p.a. instead of @12% p.a., from 05.01.2015 and interest @12% p.a., on the amount mentioned at sr.no. (ii), from the date of filing of this complaint, till realization.

 

20.       However, it is made clear, that in case, the complainants, in both the case aforesaid, have availed loan facility from any banking/financial institution(s), it shall have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
21.       Certified copy of this order, be placed on the file of consumer complaint bearing no.10 of 2016 titled as Timple Jain and ors. Vs. Puma Realtors Pvt. Ltd. and another.
22.       Certified copies of this order be sent to the parties, free of charge.
23.       The file be consigned to Record Room, after completion.

Pronounced.

27.06.2016

 

Sd/-

(DEV RAJ)

PRESIDING MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	10 of 2016
Date of Institution	:	04.01.2016
Date of Decision	:	27.06.2016

 

1. Timple Jain wife of Sh.Mohit Jain, resident of House no.12C, Hira Nagar, Patiala, Punjab, through Attorney Rajat Jain son of Sh.Rakesh Kumar Jain.
2. Rajat Jain son of Sh.Rakesh Kumar Jain, resident of House No.12C, Hira Nagar, Patiala, Punjab.
3. Anshu Rattan son of Muhinder Kumar Rattan, resident of House No.70, Officer Colony, Patiala, Punjab.

……Complainants

V e r s u s

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

            ....Opposite Parties

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

BEFORE:         MR. DEV RAJ, PRESIDING MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:       Sh.Arun Kumar and Sh. Varun Bhardwaj, Advocates for the complainants.

                        Sh.Ramnik Gupta, Advocate for the opposite parties.

 

PER MR.DEV RAJ, PRESIDING MEMBER

            Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.09 of 2016 titled as Hardeep Kaur and ors. Vs. Puma Realtors Pvt. Ltd. and another this complaint has been partly accepted, with costs, as per the directions given therein. 

2.       Certified copy of the order passed in consumer complaint bearing no.09 of 2016, shall also be placed on this file.
3.       Certified copy of the main order, alongwith this order be sent to the parties, free of charge.
4.       The file be consigned to Record Room, after completion.

                 

                  Sd/-                        Sd/-

(DEV RAJ) MEMBER

(PADMA PANDEY) MEMBER

 

Rg