Chandigarh

StateCommission

CC/168/2019

Sh. Rajesh Arora - Complainant(s)

Versus

TDI Infrastructure Ltd. - Opp.Party(s)

Amarbir Dhaliwal & Gurtej Partap Singh Sandhu Adv.

24 Feb 2021

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	168 of 2019
Date of Institution	:	25.07.2019
Date of Decision	:	24.02.2021

 

Sh.Rajesh Arora S/o Sh.Arjun Lal Arora, R/o #364, Sector 9, Panchkula, Hr.    

……Complainant

V e r s u s

1. TDI Infratech Limited. (Formerly: Taneja Developers & Infrastructure Limited) through its C.E.O/M.D./Directors/Authorized Signatories/Authorized Persons (Email;-tdigroup.punjab@gmail.com

Marketing Office:- Sector 117, TDI City, Mohali, District Mohali 140301, Pb.

Site Office:- SCO 51-52, Sector 118, Chandigarh Kharar Road, (NH-21), TDI City, Mohali.

2. Mr.Ravinder Taneja Chairman (Email:-

…..Opposite parties

 

3. Real Estate Regulatory Authority (RERA), Punjab, 1^st Floor, Block B, Plot No.3, Madhya Marg, Sector 18-A, Chandigarh-160018, through its Superintendent/Authorized Persons.
4. GMADA, PUDA Bhawan, Sec. 62, S.A.S. Nagar, Mohali (Pb.), through its Superintendent/Authorized Persons.

…..Proforma Opposite parties

 

 

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS. PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

Present:               Sh.Amarbir Dhaliwal, Advocate for the complainant.

       Sh. Puneet Tuli, Advocate for opposite parties No.1 and 2.

       None for opposite party No.3

       Sh.Anuj Kohli, Advocate for opposite party no.4.

      

PER PADMA PANDEY, MEMBER

                   This is a case, wherein the Developer/Builder- TDI Infratech Ltd. is passionate to defeat the claim of the complainant on the basis of offer of possession letter dated 09.04.2012, Annexure C-9 issued by it, in respect of the plot purchased by him, in the absence of necessary approvals/sanctions; completion certificate and also the fact that the same was offered despite the fact that the land underneath the project is still pending litigation before the Punjab and Haryana High Court, at Chandigarh.

2.           This complaint has been filed by the complainant, as he is aggrieved of deficiency in providing service and negligence on the part of opposite parties no.1 and 2, as they failed to deliver actual physical possession of plot bearing no.740, measuring 250 square yards, purchased by him, in their project named  “TDI City”, Mohali, Sector 111, SAS Nagar, Landran Banur Road, Punjab, for want of approvals/sanctions; development activities and basic amenities. It is the case of the complainant that the plot in question had been booked in the said project, as far as back on 09.05.2008 and as per demands raised by opposite parties no.1 and 2, from time to time, for the period from 26.05.2008 to 31.01.2012, he had paid an amount of Rs.32,84,560/- against total sale consideration of Rs.34,12,500/-, yet, only a symbolic possession i.e. in the absence of necessary approvals/sanctions and also development at the project site, was offered vide letter dated 09.04.2012, Annexure C-9. After receipt of the said letter, the complainant made number of requests to opposite parties no.1 and 2 to deliver actual physical possession of the plot in question after completing the project and also after getting clearances/approvals, but to no avail. To his utter shock, after a period of about more than 5 years, without redressing his grievance,  vide letter dated 15.12.2017, Annexure C-11, he was told to get the sale deed executed in respect of the plot in question and also to make remaining payment. In the absence of delivery of valid possession, the company started charging maintenance charges etc. It has been stated that the project located in Sector 111 has been abandoned by opposite parties no.1 and 2. Under those circumstances, the complainant sought RTI information from opposite party no.4, as to whether, the project in question was approved or not, yet, no reply was given by it.  Aggrieved of the situation, the complainant served legal notice dated 28.05.2019, Annexure C-18 upon the opposite parties no.1 and 2 but the same went unanswered. 
3.           By stating that the aforesaid act and conduct of the opposite parties amount to deficiency in providing service and adoption of unfair trade practice, the complainant has filed this complaint seeking possession of the plot in question, or in the alternative to refund the of amount paid alongwith interest, compensation etc.  
4.           The complaint of the complainant has been contested by the opposite parties on numerous grounds. Opposite parties no.1 and 2 stated that the complainant being investor, did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act; that this Commission did not vest with pecuniary and territorial jurisdiction to entertain this complaint; that the complaint filed is time barred; that complicated questions of facts and law are involved in this complaint, as such, the same cannot be entertained by this Commission; that only Civil Court has jurisdiction to entertain and decide this complaint; that in the face of arbitration clause contained in the agreement this consumer complaint is not maintainable; and that because the project in question has been got registered under RERA and also even if some project is not got registered under the same, jurisdiction of this Commission is barred from entertaining any complaint and only the provisions of RERA will be applicable in that event.
5.           It has been stated that letter of intent (LOI) (Annexure OP-1/7) in respect of the project in question was obtained from the competent Authorities on 31.08.2006; that layout plan were got cleared on 04.06.2009, which were later on got approved on 23.12.2011, Annexures OP 1/16 and OP-1/17; that the project in question is exempted from the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short the PAPR Act); that  legal and valid possession of the plot in question, complete in all respects, was offered to the complainant vide letter dated 09.04.2012, Annexure C-9, which was taken over by him on 24.04.2012; that vide publication also, in the newspaper,  buyers were asked to get the sale deed registered for the respective plots; that partial completion in respect of the project in question was obtained on 25.06.2015, Annexure OP/1/3; that thereafter vide letter dated 15.12.2017 (Annexure C-11) the complainant was requested to get sale deed executed in respect of the plot in question and also to start construction thereon but he failed to do so and as such, he is liable to pay holding charges as per terms and conditions of the agreement; that even maintenance agreement has been signed by the complainant, as such, now he cannot say that legal and valid possession of the plot was not handed over to him. At the same time, it has been submitted that the Government of Punjab was to develop 10% of the land of the project, under the agreement executed between the Govt. and the Company. However, some landowners challenged acquisition of the land to be acquired by the Govt., before the Punjab and Haryana High Court, which is still pending adjudication.  Remaining averments of the complaint have been denied.
6.           Opposite party no.3 in its written reply stated that since no allegations qua deficiency in providing service have been leveled against it, as such, this complaint is liable to be dismissed against it; that only sector 110 of the project has been got registered by opposite parties no.1 and 2 under RERA; that since partial completion certificate has been issued in respect of the project named “Sapphire Homes”, therefore occupation certificate was  granted in respect of the said project only; that Sector 111 has not been got registered under RERA by  opposite parties no.1 and 2, as such, no commencement certificate has been issued in that regard by opposite party no.3. 
7.           Opposite party no.4 in it written stated that since no service was to be provided by it to the complainant, as such, this complaint is liable to be dismissed against it; that the complainant is not the consumer of opposite party no.4; no application under RTI has been received from the complainant; that the complaint filed is beyond limitation; and that court fees paid by him is defective. Prayer has been made by the opposite parties to dismiss the complaint filed by the complainant. 
8.           In the rejoinder filed, the complainant reiterated all the averments made in the complaint and controverted those of the replies filed by the opposite parties.
9.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavits. In pursuance thereof, they have adduced evidence and also produced numerous documents, including rejoinder by the complainant; written arguments by the complainant, opposite parties no.1, 2 and 4, wherein, they reiterated their respective contentions.
10.           We have heard the contesting parties and have gone through record of the case, including rejoinder and written arguments, very carefully.
11.           The following moot questions emerged for adjudication of this case:-
    1. Whether this Commission is vested with territorial and pecuniary jurisdiction to entertain this complaint?
    2. Whether the complainant falls under the definition of consumer or not?
    3. Whether this complaint is maintainable or not, in the face of existence of arbitration clause in the agreement and also alleged registration of the project under RERA?
    4. Whether this complaint is time barred?
    5. Whether complicated questions of facts and law are involved in this case?
    6. Whether it could be said that the project of opposite parties no.1 and 2 is exempted from the provisions of PAPR Act?
    7. Whether opposite parties no.1 and 2 were in position to launch the project in question and sell units/plots to the general public including the complainant in the year 2008?
    8. Whether opposite parties no.1 and 2 were competent to offer and deliver possession of the plot in question by the year 2012?

 

12.           First of all coming to the objection regarding territorial jurisdiction, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the present case, it is evident that the buyer’s agreement dated 06.08.2010, Annexure C-7; maintenance agreement dated 03.02.2012, Annexure C-8, in respect of the plot in dispute were executed between the complainant and opposite parties no.1 and 2 at Chandigarh. Not only as above, it is further evident from the notification dated 18.09.2009 issued by the Govt. of Punjab in favour opposite parties no.1 and 2 that the company was having its office at SCO 1098-1099, First Floor, Sector 22-B, Chandigarh. There are other letters like letter dated 21.07.2010 Annexure R-D, No Objection Certificate dated 26.03.2010 issued by the Punjab Pollution Control Board Patiala, Annexure R-E, which are addressed to the office of the opposite parties no.1 and 2 at  SCO 1098-1099, First Floor, Sector 22-B, Chandigarh, meaning thereby that the company was actually and voluntarily residing and carrying on its business and personally work for gain thereat.  No doubt, opposite parties no. 1 and 2 took an objection that since as per Clause 40 of the agreement, it was mutually agreed to between the parties that the Courts at Delhi shall have Jurisdiction, to entertain and adjudicate the dispute(s) in respect of the plot, in question,  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 NarainSaboo, 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 Court, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to him to file the complaint. In view of above, objection taken by opposite parties no.1 and 2, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 
13.           Now we will deal with the objection taken with regard to pecuniary jurisdiction is concerned; it may be stated here that this complaint has been filed under the Consumer Protection Act, 1986, under which, for determining pecuniary jurisdiction, this Commission is required to take into consideration the value of the goods and compensation claimed if any, by the complainant. In the present case also, if the total value of the plot in question i.e. Rs.34,12,500/-, plus other reliefs claimed are clubbed together, it fell above Rs.20 lacs and below Rs.1 crore, as such, this Commission has pecuniary jurisdiction to entertain this complaint. In this view of the matter, objection taken stands rejected.
14.           As far as objection taken to the effect that the complainant did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties, to establish that the complainant has purchased the plot in question to indulge in ‘purchase and sale of plots’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainant is a consumer. Objection taken in this regard is rejected.
15.           Objection taken by the opposite parties no.1 and 2 to the effect that in the face of existence of Arbitration clause in the agreement, jurisdiction of this Commission is barred is also devoid of merit, as this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018.
16.           Now we will deal with the question, as to whether, the project in question is exempted from the provisions of PAPR Act. It may be stated here that Counsel for opposite parties no.1 and 2 has strongly placed reliance on Notification  dated 18.09.2009 (Annexure OP-1/4) issued by the Government of Punjab, to say that the project in question stood exempted from the provisions of PAPR Act. It may be stated here that perusal of the said notification reveals that in order to avail the said exemption, one of the important conditions which opposite parties no.1 and 2 were liable to fulfil was that they shall acquire the entire project land in its name including land under agreement to develop and required to be acquired by Government. It was further made clear vide condition no.(vii) that in the absence thereof, opposite parties no.1 and 2 will not carry out any works at the project site. Though, as per condition no. (iv), opposite parties no.1 and 2 were required to acquire the entire project land in its name including land under agreement to develop and required to be acquired by Government, yet, it is coming out from para no.16 (reply on merits) of the joint reply filed by opposite parties no.1 and 2 only that as per agreement 10% of the land was to be acquired by the Government of Punjab, yet, when it was in the process of doing so, some land owners challenged the acquisition process before the Punjab and Haryana High Court, which is still pending adjudication. Thus, from this candid admission of opposite parties no.1 and 2, it is proved that condition no. (iv) of the Notification dated 18.09.2009 has not yet been fulfilled.

                   Furthermore, as per condition no.(vi) of the said notification, before carrying out any work at the project site, opposite parties no.1 and 2 were liable to obtain environmental clearance from the Ministry of Environmental and Forest  Government of India as required under EIA Notification dated 14-9-06 as well as consent to establish (NOC) from the Punjab Pollution Control Board, yet, it is coming out from the record dated 30.06.2020, submitted by opposite party no.4, in compliance of order dated 09.01.2020 passed by this Commission that Final NOC for Air and Water Pollution from Punjab Pollution Control Board had been obtained by opposite parties no.1 and 2 only on 12.05.2014  which was valid upto 31.03.2017 and there is nothing on record that extension in that regard has been obtained by the company or not. It is also coming out from the said compliance report that  opposite parties no.1 and 2 had obtained Environmental Clearance from the Ministry of Environment and Forests, Government of India only on 06.02.2014. In the said compliance report, it has been in a very candid manner, brought to the notice of this Commission that opposite parties no.1 and 2 were bound not to have started work at the project site, in the absence of the aforementioned NOCs/permissions. The said Notification  dated 18.09.2009 (Annexure OP-1/4) will operate, once the opposite parties fulfils all the conditions mentioned therein and not before that. In this view of the matter, it is held that since the said exemption certificate was issued subject to many various conditions, yet, opposite parties no.1 and 2 failed to fulfil the same, as such, no help therefore can be taken by them from Notification dated 18.09.2009 (Annexure OP-1/4).

                   Not only as above, even as per terms and conditions contained in Letter of Intent dated 31.08.2006 (Annexure OP-1/7), before launching the project in question and selling the units/plots therein, opposite parties no.1 and 2 were bound to get layout plans approved/cleared; obtain environmental clearance; and NOC from the Punjab Pollution Control Board. However, record reveals that despite the fact that 10% of the land in question is still pending litigation before the Punjab and Haryana High Court; final NOC for Air and Water Pollution from Punjab Pollution Control Board had been obtained by opposite parties no.1 and 2 only on 12.05.2014 which was valid upto 31.03.2017 and there is nothing on record that extension in that regard has been obtained by the company or not; Environmental Clearance from the Ministry of Environment and Forests, Government of India has been obtained only on 06.02.2014, yet, the  opposite parties no.1 and 2 launched the project in question and sold the plots/units therein to the prospective buyers and the complainant, starting from 2008 onwards, which act amounts to unfair trade practice and deficiency in providing service.

                   It is also coming out from the record that even the layout plan was for the first time got cleared by opposite parties no.1 and 2, in respect of the project in question only on 04.06.2009, which was got revised on 23.12.2011. This fact has been admitted by opposite parties no.1 and 2 in para no.12 (i) of their joint reply, meaning thereby that even the layout plan was not got finally approved before selling the plot in question to the complainant in 2008. 

                   Thus, record reveal that, infact, the money has been collected with animus of cheating and fraud. It is settled law that a builder is duty bound to ensure that before accepting the amount of booking, necessary permissions/ sanctions have been granted for launching the project and selling the units/plots therein. It was so said by the Hon’ble National Commission in Omaxe Limited and anr. Vs. Dr. Ambuj Chaudhary, First Appeal No. 300 of 2012, decided on 13.02.2017. In the present case, the project in question was launched and units/plots therein were sold to the innocent buyers, in complete violation of the mandatory requirements as per Law, just with a view to grab money from them. It is therefore held that opposite parties no.1 and 2 were not in a position to launch the project in question and sell units/plots to the general public including the complainant in the year 2008. By launching the project without obtaining necessary approvals/sanctions, referred to above, opposite parties no.1 and 2 indulged into unfair trade practice.

17.           However, this Commission is surprised to note that despite the fact that project is still under litigation before the Punjab and Haryana High Court, as some landowners have filed case against the Govt. of Punjab for acquisition of the project land, as has been admitted by opposite parties no.1 and 2 in their written statement, even then partial completion certificate dated 25.06.2015, Annexure OP-1/3 has been issued by opposite party no.4, for the reasons best known to it., Thus, irrespective of the fact that the said partial completion certificate dated 25.06.2015 was valid or not and for a moment even if it is assumed that the same was a valid certificate (though not admitting it to be valid) even in those circumstances also, the possession of the plot in question, so offered vide letter dated 09.04.2012, Annexure C-9 in the absence of any  completion certificate could not be held to be valid possession. The fact that the said partial completion certificate was obtained only on 25.06.2015 (though not valid in the eyes of law), is sufficient to prove that by 09.04.2012, there was no partial completion certificate in the hands of opposite parties no.1 and 2. Thus, even if for the sake of arguments, the said partial completion is assumed to be genuine, then also the possession of plot so offered vide letter dated 09.04.2012 was nothing but a paper possession. However, without going deeply into this issue, we have been consistently holding that mere obtaining partial completion certificate, in the absence of final complete certificate is of no use to a builder. In none of the Acts/ Rules/Regulations like PARP etc. which are applicable to the projects located in Punjab, the Competent Authorities have given immunity to the builders/developers from obtaining final completion certificate in respect of a project, before offering possession of units/plots therein to the prospective buyers. The complainant was thus not obliged to retain the possession of the plot in question on the basis of the said offer of possession letter dated 09.04.2012.   
18.           Under above circumstances, it is held that in the absence of necessary permissions referred to above; valid completion certificate from the competent authorities; and also the fact that the project is still under litigation, opposite parties no.1 and 2 were not in a position to deliver possession of the plot in question, in the year 2012 and as such, possession so offered by them to the complainant, vide letter dated 09.04.2012, Annexure C-9 was nothing but a paper possession, which is not sustainable in the eyes of law.  The mere fact that some papers with regard to possession of the plot and also maintenance agreement have been got signed from the complainant by opposite parties no.1 and 2 under the animus of unfair trade practice, especially in the face of the proven fact that they were not in a position to do so, for want of necessary permissions/sanctions and also the fact that the project was pending litigation and nobody knows about its final outcome, no benefit can be given to them (opposite parties no.1 and 2) to defeat the claim of the complainant. Thus, if the complainant did not make some payment at the relevant time, he cannot be termed as defaulter.
19.           The plot in question was booked by the complainant, as far as back in 2008. Substantial amount of Rs.32,84,560/- against total sale consideration of Rs.34,12,500/-, had been paid by the complainant between 26.05.2008 to 31.01.2012, yet, actual physical possession of the plot in question has still not been delivered to him. On the other hand, as stated above, it is proved on record that opposite parties no.1 and 2 were not competent to sell plots or flats and to collect money from the complainant and other prospective buyers, in 2008 or thereafter, as far as the present project is concerned. Since not even a single document has been placed on record by opposite parties no.1 and 2, to counter the allegations leveled by the complainant, it can very well be said that the project in question was launched and units/plots therein were sold to the innocent buyers, in complete violation of the mandatory requirements as per Law, just with a view to grab money from them.  Thus, it is held that no complicated question of facts and law are involved in this case and it is a simple case of launching the project and selling the units/plots therein to the prospective buyers, by opposite parties no.1 and 2, in complete violation of the mandatory requirements as per Law, just with a view to grab money from them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on their part.
20.           Under above circumstances, we are of the considered opinion that we cannot make the complainant to wait for an indefinite period for delivery of actual physical possession of the plot in question, especially,  when he has pressed his alternative relief with regard to refund of the amount paid alongwith interest, compensation etc. It is well settled law that non-delivery of actual physical possession of plots/units in a developed project by the promised date or if no period is mentioned in the agreement, within a reasonable period say two to three years from the date of booking, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. Our this view is supported by the observations made by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. This view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present case also, since there has been an inordinate delay in the matter and the complainant is holding only a symbolic possession as such, we are of the considered opinion that if we order refund of the amount paid alongwith suitable interest, that will meet the ends of justice. 
21.           The complainant is therefore held entitled to get refund of the amount actually paid by him alongwith interest @12% p.a. from the respective dates of deposits in view of principle of law laid down by the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Under similar circumstances, the Hon’ble National Commission in Anil Kumar Jain & Anr. Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019, also ordered refund of the amount paid, alongwith interest @12% p.a.

                   Even as per Clause 8 of the agreement, it has been agreed to by opposite parties no.1  and 2 that in case they are unable to handover actual physical possession of the plot in question or allot alternative plot, they shall refund the entire amount received from the complainant alongwith interest @12% p.a.

22.           As far as objection taken to the effect that the complaint filed is beyond limitation, it may be stated here that since it has been held above that actual physical possession of the plot in question was never delivered to the complainant and also the amount paid has also not been refunded, as such, there is a continuing cause of action in his favour in view of principle of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah  and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer and also in Ansal Housing And Construction Ltd. Vs. Tulika Gupta & Anr., First Appeal No. 545 of 2017, decided on 24 Aug 2017, wherein it was observed by the Hon’ble National Commission that “…ordinarily if the  possession is not given to the allottees, they would have a recurrent cause of action to file the complaint till the time either the possession was given to them or the amount paid by them was refunded….”.. As such, objection taken in this regard is rejected.
23.            As far as objection taken by opposite parties no.1 and 2 to the effect that in the face of provisions of RERA, jurisdiction of this Commission is barred to entertain this complaint, it may be stated here that the same does not merit acceptance, in view of the ratio of law laid down by the Hon’ble Supreme Court of India in Civil Appeal No. 3581-3590 of 2020, M/s Imperia Structures Ltd. Vs. Anil Patni and another, decided on 02.11.2020, wherein it was held that the provisions of RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any consumer complaint. Relevant part of the said order reads as under:-

 

24. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.

25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force. 26. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 hereinabove, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called “consumers” within the meaning of the CP Act, two questions would arise; a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything inconsistent in the provisions of the CP Act with that of the RERA Act.

 

*27. In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee , it was held by this Court:- “The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court. *(See Bharat Bank Ltd. V. Employees and Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking *Corpn . On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint…”

 

This view has been reiterated by the Hon’ble Supreme Court of India in Civil Appeal No. 5785 of 2019, Ireo Grace Realtech Pvt. Ltd. Versus Abhishek Khanna & Others, decided on 11.01.2021. Even otherwise, this objection is rendered infructuous, in view of the reason that it has been apprised to this Commission by opposite party no.3 by way of filing its reply that the project in question has not been got registered under RERA. As such, objection taken in this regard stands rejected.

24.           Now coming to the objection taken by opposite party no.4 with regard to court fees, we have gone through the requisite documents and found that correct fees to the tune of Rs.4,000/- being the claim of the complainant above Rs.50 lacs and below Rs.1 crore, has been paid by him. Objection taken in this regard, as such, being frivolous, is rejected.
25.           For the reasons recorded above, this complaint is partly accepted, with costs and opposite parties no.1 and 2, jointly and severally, are directed as under:-

1. To refund the amount of Rs.32,84,560/- and also Rs.46,456/- received towards maintenance charges, to the complainant, alongwith interest @12% p.a., from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amounts shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/- to the complainant within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

26.           Complaint against opposite parties no.3 and 4 is dismissed with no order as to costs. It is necessary to add here that it has been noticed by this Commission that the Officers/officials of opposite party no.4 is adopting callous attitude while issuing occupation and completion certificates in respect of projects of the builders/developers, which act needs to be deprecated. As such, opposite party no.4 is ordered to direct its Officers/Officials in the matter, failing which, heavy penalties/damages will be levied in future against it, if found guilty.  
27.           However, it is made clear that in case the complainant has availed housing loan from any Bank(s)/financial institution(s) for making payment towards price of the said plot, it shall have  the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.
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.

24.02.2021

 

Sd/-

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

 

(RAJESH K. ARYA)

 MEMBER

 Rg.