MRS. NEENA SANDHU, MEMBER

1.         This order, shall dispose of  Appeal No.679 of 2009 titled as  Neena Singh and others Vs. Silver City Housing & Infrastructure Limited & others and Appeal No.674 of 2009 titled as Gurdeep Kaur Vs. Silver City Housing & Infrastructure Limited and others, against the common order dated 9.11.2009, rendered by the District Consumer Disputes Redressal Forum-I, U.T.Chandigarh(hereinafter to be referred as the District Forum only), vide which it dismissed both the complaints.

2.      The facts, in brief, as reflected in complaint case No.828 of 2009 Neena Singh & Anr. Vs. Silver City Housing & Infrastructure Ltd. & others are that, the complainants had booked a flat in Silver City Themes at Village Bhankarpur, M.C. Dera Bassi, Patiala, now SAS Nagar, Mohali (Punjab) with the OPs and paid a sum of Rs.1,75,000/- through cheque bearing No.474233 dated 9.1.2006 drawn on HDFC Bank, as booking amount, for the said flat. The Ops had acknowledged the same vide receipt No.724 dated 12.1.2006 against which, he was allotted flat No.207-F, IInd Floor, CAT A-2, Block A-V having total super covered area measuring 1641.54 Sq.ft. It was stated that an agreement of sale was entered into between the parties on 24.1.2006 and as per condition No.2 of the said agreement, the total cost of the flat was Rs.16,55,000/-, car parking charges were Rs.50,000/-, power back up installation charges were Rs.60,000/- and club membership fee was Rs.10,000/-, totalling to Rs.17,75,000/-.  It was further stated that the total amount was to be paid in five installments. The complainants paid an amount of Rs.13,31,250/- to the Ops in three installments as per the terms and conditions of the agreement. As per condition No.3 of the agreement of sale, the Ops were to complete the construction of the apartments by 31.7.2007 i.e. at the time of payment of the 5^th installment of 5%. However, before the payment of 4^th installment of 20%, it came to the notice of the complainants that the Ops had stopped the construction of the project, in which the aforesaid flat was allotted to the complainants.  The complainant sent a letter dated 8.2.2007 to the Ops and expressed her willingness to pay the 4^th installment, but before doing so. They inquired about the reason of delay in completing the allotted apartment. The Ops vide their letter received by the complainants on 23.2.2008 took shelter behind some order, passed by the Hon’ble High Court staying the notification of the Punjab Pollution Control Board dated 17.1.2006 and assured to complete the project in time bound manner, but failed to do so, despite the fact that they received 75% of the cost of flat. It was further stated that the abovesaid acts of the Ops amounted to deficiency, in service, and indulging into unfair trade practice.

Complaint Case No. 838 of 2009 – Gurdeep Kaur Vs. Silver City Housing & Infrastructure Limited & other.

        The facts, in brief, are that, the complainant had booked flat No.144-A, 1^st Floor, CAT B-2 for a total sum of Rs.16,55,000/- in Silver City Themes at Village Bhankarpur, M.C. Dera Bassi, Patiala, now SAS Nagar, Mohali (Punjab) with the OPs. On 17.1.2006 she paid a sum of Rs.1,68,000/- through cheque bearing No.221187 drawn on State Bank of India, Chandigarh branch vide receipt No.1063 towards booking amount for the said flat to the Ops and, thereafter, she made the following payments to the Ops.

i)            7.3.2006            Rs.2,52,000/- through cheque No.221196

ii)            4.6.2006            Rs.4,07,500/- through cheque No.221198

iii)            12.10.2006             Rs.4,13,750/- through cheque No.221200

It was stated that the balance amount of Rs.4,13,750/- was to be paid by the complainant at the time of handing over the possession to her. As per the assurance given by the Ops, the possession of the flat was not handed over to the complainant in 18 months, from the date of booking i.e. 17.7.2007. The complainant visited the site of the Ops and it came to her notice that the Ops had stopped the construction of the project since long. It was further stated that in the month of February, 2008, the complainant received a letter from the Ops vide which the time for handing over the possession of the flat was extended by them to 25.2.2009. On 19.2.2009, the complainant again visited the site of Ops and found that no construction of the project was going on. The complainant immediately wrote a letter dated 19.2.2009 to the Ops, to which on 1.3.2009 the Ops sent reply, in which it was stated that the stopping of construction was beyond their control, as per clause 23 of the said agreement i.e. Force Majeure. It was further stated that the Hon’ble Punjab & Haryana High Court had vacated its stay order on 1.5.2008, but the Ops remained silent over the progress of construction of the project since 1.5.2008 i.e. after vacation of the said stay order. As per the terms and conditions of the agreement, the complainant had made a payment of Rs.12,41,250/- to the Ops. It was further stated that the complainant received a letter dated 17.5.2009 from the Ops, wherein they once again tried to extend the time for handing over the possession, for 12 to 15 months more i.e. upto 17.8.2010. They even asked the complainant to pay the balance amount of Rs.4,13,750/-, which as per the agreement was to be payable by the complainant at the time of handing over the possession to her. It was further stated that the act of Ops amounted to deficiency, in service, and also indulged into unfair trade practice.

3.         Reply was filed by the OPs wherein they admitted the receipt of Rs.13,31,250/- and Rs.12,41,450/- from the complainants but denied that they failed to construct the flats.  It was denied that the OPs were to complete the construction by 31.7.2007.  It was further stated that the construction was stopped and delayed due to the reasons, beyond the control of the OPs, under Force Majeure circumstances as some Public Interest Litigation bearing CWP No.18632 of 2005 was filed in the Hon’ble Punjab and Haryana High Court in which the Hon’ble Court vide order dated 30.1.2007 stayed the notification dated 17.1.2006 of Punjab Pollution Control Board. All other allegations levelled by the complainant in the complaint were denied. It was further stated that there was neither any deficiency, in service, nor indulgence into unfair trade practice on the part of OPs. 

4.         OP No.3 i.e. Rajesh Bhasin did not appear, despite service. Hence, OP No.3 was proceeded against exparte.

5.         The parties led evidence.                    

6.         After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, decided both the complaints, referred to above, vide common order dated 9.11.2009, in the manner,  detailed in para-1 of the judgment. 

7.            Feeling aggrieved, the aforesaid appeals, were filed by the complainants/ Appellants.  

8.         We have heard the Counsel for the appellant, Law Officer, on behalf of respondents and have perused the record, carefully.

9.       The learned Counsel for the appellants in appeal No. 679 of 2009 submitted that despite obtaining a huge amount of Rs.13,31,250/- and Rs.12,41,250/- for the flats, which were allotted to the appellants, the same were not constructed by the respondents nor possession of the same was delivered to them. He further submitted that Neena Singh, complainant did not pay the 4^th installment, as there was no progress in the construction and the 5^th installment was to be paid by her at the time of handing over the possession to her. He further submitted that Gurdeep Kaur did not pay the last installment, as the same was to be paid at the time of handing over the possession to her. He further submitted that even after the vacation of stay by the High Court, no progress in the construction took place. He further submitted that it was not a case, in which only the first installment was paid by the appellants and, thereafter, they failed to pay any amount. He further submitted that, under these circumstances, the appellants were entitled to the refund of the amount with interest. He further submitted that the respondents were deficient in rendering service and also indulged into unfair trade practice. He further submitted that the District Forum was wrong in dismissing the complaints.

10.     The Law Officer on behalf of OPs/respondents argued that the learned District Forum rightly dismissed both the complaints by holding that as per Clause 12 of the agreement, the possession could only be given after full payment and as per Clause 18 of the agreement, the allottees were required to make all the payments as per installment plan. It was further submitted that the complainants failed to pay the 4^th installment even till today and the learned District Forum rightly hold that where the allottees failed to pay the installments, the promoter company could not  be expected to raise construction and they could not be said to be deficient in rendering service. It was further submitted that the delay in handing over the possession of the flat was not due to the fault of the OPs but due to the circumstances, beyond their control as there was stay from the Hon’ble Punjab and Haryana High Court in CWP No.18632 of 2005 titled as Dharam Chand & Others Vs. State of Punjab and, therefore, the OPs were unable to raise any construction. In support of his contentions, regarding the Force Majeure clause, the Law Officer placed reliance on Southern Gas Ltd. Vs. Visveshwaraya Iron and Steel Limited, 1999(1) RCR (Civil) Page 444. It was further submitted that the appellant never adhered to the terms of the agreement and did not make the payment in time. It was further submitted that now the construction on the site, was in full swing and the OPs will hand over the flats within a short span of time. It was further submitted that the buyers had agreed to take possession of their respective flats by the end of June, 2011. It was further submitted that in some of the cases the matter already stood amicably settled between the parties and in this regard, the OPs placed on record a copy of the order dated 20.8.2010 passed by the Punjab State Commission, in which it was held that “the respondents shall deliver the constructed flats as per the original agreement to the complainant on or before 30.6.2011 and in case the respondents failed to do so, the respondents shall refund the entire money alongwith interest @ 18% p.a. from the date of deposits till the date of payment on or before 15.7.2011.” It was further submitted that this Commission had no territorial jurisdiction to adjudicate upon the matter as the property is situated in Derabassi (Punjab), hence, the Punjab State Commission had the territorial jurisdiction to adjudicate upon this matter.  It was further submitted that the present complaint was not maintainable because there is an arbitration clause in the agreement and, therefore, the matter should have been referred to the arbitrator. In support of this submission, the OPs placed reliance on the judgment passed by the Hon’ble Supreme Court titled as Markfed Vanaspati & Allied Industries Vs. Union of India, 2007(4) RCR (Civil) 358. It was further submitted that there was no deficiency, in service, or negligence on the part of OPs and the delay occurred due to the aforesaid circumstances. 

11.     It is evident from the record that there was a stay from 30.1.2007 to 1.5.2008 granted by the Hon’ble Punjab and Haryana High Court in CWP No. 18632 of 2005 and, therefore, the OPs were unable to raise construction on the site, almost approximately for one year and two months. But, thereafter, the OPs had no excuse as to why they did not hand over the possession of the flats. Even, we are of the view that the OPs should have restarted the construction immediately after the stay had been vacated and should have given the possession may be by the end of September, 2008 or by the beginning of October, 2008. However, the OPs were unable to give possession even till today. Thus, the complainants had every right to get back their money alongwith interest because since long, the OPs have been using money. In our opinion, the complainant is entitled to the refund of amount alongwith interest. But the interest @ 24% p.a. demanded by the complainant seems to be on the higher side. It will be appropriate if the amount deposited by the complainants, is refunded, alongwith interest @ 18%  p.a.  The award of interest @ 18% p.a. shall take care of the mental agony and harassment suffered by the complainant at the hands of the OPs.

12.     The objection taken by the OPs with regard to the territorial jurisdiction is not tenable because the OPs have their head office at Chandigarh. Thus, as per Section 11 (2) (a) of the Consumer Protection Act, 1986, the Consumer Fora, Chandigarh, had a territorial jurisdiction to entertain the complainant.

13.     We don’t find any force, in the submission made by the learned Counsel for the OPs, that the complaint filed under the Consumer Protection Act was not maintainable, because, according Clause 30 of the agreement, in case of any dispute, between the parties, the matter could only be referred to the arbitrator and no complaint could be filed in the Consumer Fora. There is, no dispute, that arbitration clause exists in the agreement. Arbitration clause does not create any bar to the filing of a complaint in Consumer Fora. Section 3 of the Consumer Protection Act, 1986, provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

14.       In view of the above discussion, we have come to the conclusion that there is deficiency, in service, on the part of OPs and they also indulged into unfair trade practice. Appeal bearing No.679 of 2009 (Neena Singh & others Vs. Silver City Housing and Infrastructure Limited and others) is allowed and the order passed by the learned District Forum is set aside. We direct the OPs to refund the amount of Rs.13,31,250/- ( deposited by the complainant) alongwith interest @ 18% p.a., from the respective dates of deposit of the amount, till its realization. The OPs shall also pay costs of litigation to the tune of Rs.5,000/-. 

15.       The appeal bearing No. 674 of 2009 (Gurdeep Kaur Vs. Silver City Housing and Infrastructure Limited) is also allowed and the order passed by the learned District Forum is set aside. We direct the OPs to refund the amount of Rs.12,41,250/- ( deposited by the complainant) alongwith interest @ 18% p.a., from the respective dates of deposit of the amount, till its realization. The OPs shall also pay costs of litigation to the tune of Rs.5,000/-. 

            The OPs are directed to comply with the aforesaid order within 30 days from the date of receipt of copy of this order, failing which, interest    @ 12% shall be paid on the amount, referred to above, excluding the litigation expenses of Rs.5,000/-.

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

Pronounced.                                                                        

2^nd May, 2011.