Chandigarh

StateCommission

A/246/2023

GREATER MOHALI AREA DEVELOPMENT AUTHORITY - Complainant(s)

Versus

RAJ KUMARI - Opp.Party(s)

SWATI DAYALAN

27 Mar 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	246 of 2023
Date of Institution	:	20.09.2023
Date of Decision	:	27.03.2024

 

1]      Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Mohali, Punjab through its Chief Administrator.

2]      Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Mohali, Punjab through its Estate Officer.

   …Appellants/opposite parties

V e r s u s

 

Raj Kumari, aged 55 years, daughter of Sh. Ved Parkash Arya, Resident of House No.614/1, Sector 41-A, Chandigarh. 

…..Respondent/Complainant.

 

BEFORE:    MR. RAJESH K. ARYA, PRESIDING MEMBER.

                   MR. PREETINDER SINGH, MEMBER.

 

ARGUED BY:-     

 

Ms. Swati Dayalan, Advocate for the appellants.

Sh. Ranjinder Singh Sidhu, Advocate for the respondent.

 

PER  RAJESH  K. ARYA, PRESIDING MEMBER

                   The opposite parties (appellants herein) have assailed the order dated 05.04.2023 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), vide which, consumer complaint bearing no.698 of 2021 filed by the respondent/complainant was partly allowed against them in the following manner:- 

“4.     In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to pay to the complainant interest @ 9% per annum on the entire deposited amount for the delay in delivery of possession w.e.f. the 18.11.2017 (i.e. after due date of one year as per clause 15 of the LoI) till 29.12.2020.
2. To refund the aforesaid excess amount of ₹1,79,662/- to the complainant alongwith interest @ 9% per annum w.e.f. the date of filing of the instant consumer complaint i.e. 13.10.2021 till its realization.
3. to pay an amount of ₹1,00,000/- to the complainant as compensation for causing mental agony and harassment to her;
4. to pay ₹10,000/- to the complainant as costs of litigation.

5.      This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) to (iii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iv) above.”

2.           Before the District Commission, it was the grievance of the respondent-complainant that the appellants/opposite parties failed to deliver the possession of the plot in question in terms of the Letter of Intent within a period of one year from the date of issuance thereof i.e. 18.11.2016 and there was delay of three years one month and twelve days in delivering the possession of the same. It was further averred that an amount of ₹1,79,662/- was lying in excess with the appellants, which they never refunded to the respondent despite repeated requests and as such, the respondent - complainant was entitled for the refund of the said amount alongwith interest @18% per annum for the period of delay as per terms and conditions of the LOI alongwith compensation.
3.           On the other hand, appellants – opposite parties contested the complaint by filing written version, wherein it was stated that as the possession could not be delivered to the respondent - complainant on account of non issuance of the amended environmental clearance by the State Level Environment Impact Assessment Authority and all the concerned were informed through public notice dated 14.6.2019 published in The Tribune English newspaper and immediately on receipt of the said amended clearance certificate, they handed over the possession to the respondent - complainant, who accepted the same without any objection. It was further stated that the said amount of ₹1,79,662/- was deposited by the respondent - complainant of her own and she had never applied for the refund of the same.
4.           In the rejoinder filed, the respondent-complainant reiterated all her averments contained in the complaint and controverted those of the opposite parties.
5.           The contesting parties led evidence before the District Commission.
6.           The District Commission after hearing the contesting parties and on going through the material available on record allowed the consumer complaint, in the manner stated above. 
7.           We have heard the contesting parties and gone through the material available on the record; including the written arguments filed by the appellants, very carefully.
8.           Before dealing with the rival contentions of the parties, it may be stated here that there is a delay of 104 days (as per the office 73 days) in filing the present appeal, for condonation whereof, miscellaneous application bearing No.726 of 2023 has been filed alongwith the appeal. The application has been contested by the respondent by filing reply. In the application, it has been stated that after receipt of certified copy of the impugned order, the same was examined by the concerned officers of the appellants authority and proposed course of action was put up for approval. Comments were called from different branches, which were received on 02.06.2023. File was put up for approval before the Chief Administrator, GMADA for filing appeal, which was granted on 23.06.2023. Approval for engagement of Panel Advocate was given on 13.07.2023. Advocate who appeared before the District Commission was requested for provide documents, which were received on 15.7.2023, which were accordingly sent to the Advocate of the appellants for drafting appeal. The Counsel in Chandigarh prepared the first draft of the appeal by 22.07.2023 and the process of approval and vetting took time. As such, delay in filing the appeal occurred, which being procedural one is neither intentional nor deliberate. The reasoning for delay in filing the appeal, given in the application, is duly supported by affidavit dated 01.09.2023 of Estate Officer, GMADA. After going through the contents of the application, which is supported by duly sworn affidavit and in view of law settled by Hon’ble Supreme Court of India in Pundlik Jalam Patil Vs. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448 and Basawaraj and Anr. Vs. Special Land Acquisition Officer, (2013) 14 SCC 81, the appellants have shown rational reason for the delay, which has been caused due to bonafide reasons. As such, the delay in filing the appeal is condoned. MA/726/2023 stands disposed of accordingly.
9.           The first ground to assail the impugned order as taken by the appellants is that on account of alleged delay in delivery of possession of the plot, the consumer complaint was required to be filed by the respondent within a period of two years from the stipulated date of possession i.e. 17.11.2017 and hence, beyond 17.11.2019, no such complaint could be filed. It has been stated that the complaint was liable to be dismissed being barred by limitation. In this regard, it may be stated here that this objection has rightly been rejected by the District Commission by holding that as admittedly, the possession of the plot was handed over on 29.12.2020, therefore, the consumer complaint having been filed on 13.10.2021 was well within the prescribed period of two years from the accrual of the cause of action. Accordingly, raising similar objection again, at the appellate stage, once the District Commission has already held the consumer complaint to be within prescribed period of limitation of two years, is of no help to the appellants.
10.           The next ground raised is that the respondent is not a consumer for the purpose of Section 2(7) of Consumer Protection Act, 2019 as she has been allotted a plot in IT City, SAS Nagar, Mohali, which in no manner demonstrates that the same is meant for personal use.          It is significant to mention here that there is nothing on record by way of any cogent and convincing evidence in support of this objection. To prove the objection, the onus lies upon the appellants but they failed to do so. Thus, because in the present case, the appellants failed to discharge their onus, we hold that the respondent falls under the definition of consumer as defined under the Act. Our this view is supported by the observations made by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates, I (2016) CPJ 31. As such, this ground stands rejected.
11.           The next ground to lay challenge to the impugned order is that the amended clearance upon an environmental impact assessment to carry out developmental work was granted to the appellants only on 28.03.2019 and therefore, the delay caused on account of a mandatory clearance to be issued by a Central Ministry cannot be attributed to the appellants. It has further been stated that further due to outbreak of COVID-19 and nationwide lockdown imposed by the Govt., and due to aforesaid force majeure events, the delay in delivering the possession of the plot occurred, which the District Commission failed to appreciate. In this regard, it may be stated here that this contention of the appellants has rightly been rejected by the District Commission by holding that the appellants failed to clarify as to why they received huge amount from the respondent- complainant, knowing fully well that necessary clearances have not been given by the competent authorities, which were otherwise obligatory on the part of the appellants to obtain before booking plot and the purchaser of the plot had nothing to do with the grant of statutory approvals/clearances/amended clearances and as such, the respondent could not be penalized by postponing the possession. This is an admitted case on the part of the appellants that the delay occurred in delivering possession and we find nothing wrong with the view held by the District Commission that collecting money from the prospective buyers and selling the plots/units in the project, without obtaining the required approvals/clearances/amended clearance was an unfair trade practice on the part of the appellants- project proponent. Qua the contention raised with regard to COVID 19, we are of the concerted view that since the booking of plot was made by the respondent - complainant in the year 2016 and the possession thereof was to be delivered within a period of one year from the date of issuance of LOIs i.e. by 17.11.2017, therefore, this contention is totally unsustainable in view of the fact that the COVID-19 pandemic had spread all around the world in the year 2020. Thus, we upheld the observation made by the District Commission that the appellants – opposite parties could not take shelter behind the force majeure circumstances.
12.           The next contention of the appellants – opposite parties is that the District Commission erred in awarding interest @9% / 12% per annum on the deposited amount without any basis and without ascertaining the loss suffered by the respondent. To say so, reliance has been placed by the appellants on Chief Administrator, Punjab Urban Developers Authority & Anr. Vs. Manju Chauhan, 2020 SCC Onlne Hon’ble National Consumer Disputes Redressal Commission, New Delhi 555; Sanjay Gupta & Anr. Vs. Three C Shelters Pvt. ltd. and Another, 2020 SCC Online Hon’ble National Consumer Disputes Redressal Commission, New Delhi 178; Sushma Buildtech Ltd. Vs. Jagsukhbir & 3 Ors. and Jose Mariano Cordeiro Vs. M/s Kalash Real Estate Developers, FA/12/2018 decided vide order dated 06.10.2020. In this regard, it may be stated here that in present scenario, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi is awarding 9% interest and in the recent judgment, as referred to by the District Commission, in the impugned order i.e. Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture Hubtown Sunstone, Consumer Case No.12 of 2017, decided on 4.5.2022 , the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Not only this, in Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Therefore, we do not find any infirmity or illegality in awarding 9% interest by the District Commission on the entire deposited amount for the delay in delivery of possession w.e.f. the 18.11.2017 (i.e. after due date of one year as per clause 15 of the LoI) till 29.12.2020.  
13.           Qua refund of ₹1,79,662/- alongwith interest 9% p.a. ordered by the District Commission, we do not find anything wrong in the relief granted. In our view, this excess amount remained with the appellants for a substantial period and they enjoyed the same and never thought of returning the same to the respondent-complainant. Summing up all, we are of the concerted view that the order impugned passed by the District Commission allowing the consumer complaint filed by the respondent-complainant, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
14.           For the reasons recorded above, this appeal being devoid of merit, stands dismissed with no order as to cost.
15.           Pending applications, if any, stands disposed of accordingly.
16.           Certified copies of this order be sent to the parties free of charge forthwith.
17.           File be consigned to Record Room after completion.

Pronounced

27.03.2024

 

 [RAJESH K. ARYA]

PRESIDING MEMBER

 

 

 

(PREETINDER SINGH)

 MEMBER

Ad/-