Haryana

Ambala

CC/56/2021

Madan Kumar Garg - Complainant(s)

Versus

Teh Chief Administrator - Opp.Party(s)

Pardeep Batra

02 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :     56 of 2021

                                                          Date of Institution           :     01.02.2021

                                                          Date of decision    :     02.09.2022.

 

Madan Kumar Garg son of Shri Devi Chand Garg resident of House no.297, Sector 1, Ambala City,

          ……. Complainant

                                                Versus

1. The Chief Administrator, Haryana Sahari Vikas Pradikaran, Panchkula.

2. Haryana Sehari Vikas Pradikaran, Karnal through its Estate Officer.

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.            

Shri Vinod Kumar Sharma, Member.

 

Present:       Complainant in person.

                     Sh. C.S. Bindra, Advocate, counsel for the OPs.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(i)      To refund the amount of Rs.26.12 Lacs paid by the        complainant alongwith interest at the rate of 18% per annum    from the date of deposit till its actual realization.

(ii)     To pay Rs.5,00,000/-, as compensation for the mental agony   and physical harassment suffered by the complainant.

(iii)    To pay the cost of litigation.

 

2.             Brief facts of this case are that the complainant was allotted a residential plot no. 86 (General Category) measuring 8 Marla in sector 1, Urban Estate, Taraori, Distt. Karnal in draw of lot held on 04.06.2015 by the OPs. The allotment letter was issued on 01.02.2016. The complainant has been depositing all installments regularly and till date deposited an amount of Rs.26.12 lakhs. The OPs offered possession of the plot in question, vide letter dated 20.09.2018 (posted through letter dated 28.09.2018) and demanded interest due on the pending installments w.e.f. 20.09.2018 i.e. retrospectively. The complainant applied for the physical possession of the plot through registered letter dated 29.07.2019 but it was rejected by the OPs without assigning any reason through Message received on the telephone number of the complainant-9416499393 on 1.8.2019. The complainant enquired from the office of OPs about the reason of rejection of his application but all in vain. Till that time the complainant had paid an amount of Rs.21,00,000/ approximately to the OPs for the said plot. Inspite of the payment of such a big amount the OPs did not show any courtesy towards the complainant even to inform him about the reason for rejection of application for possession of plot. Inspite of this the complainant deposited the next installment due on 01.02.2020 along with accrued interest i.e. total amount of Rs.5,46,000/-. Thereafter the complainant wrote a letter to the Executive Officer of the OPs for waiving the possession interest levied on the plot in question but to no avail. Letters written to the Senior Officers in the matter also did not yield any result. Furthermore, even the possession of the plot was offered without completing the development works including sewerage at the project site, which fact is evident from the memo no. 16174 dated 11.12.2020 having been issued by the competent authority.  Not only as above, even penal interest was wrongly demanded by the OPs from the complainant. Left with no alternative, the complainant sought refund of the amount paid alongwith interest but the OPs failed to do so. The aforesaid act of the OPs amounts to deficiency in service. Hence, the present complaint.
3.           Upon notice, the OPs appeared and filed written version, raised preliminary objections with regard to maintainability, locus standi, cause of action and jurisdiction etc. On merits, while admitting the factual matrix of the case with regard to allotment of the plot in question in favour of the complainant and the payment of Rs.26.12 lacs by him, it has been stated that the complainant has claimed the refund of the entire amount of Rs.26.12 Lakh deposited by him towards the costs of plot No. 86, Sector-1, Urban Estate Taraori, whereas in the entire complaint he did not plead or prayed that he wants to surrender the plot in question. The present controversy, which has arisen out of a contract, cannot be decided by this Hon'ble Commission in the summary trial. As per terms and conditions of the allotment letter, the balance amount i.e.  Rs.23,97,802/ of the tentative costs of the plot was to be paid in lump sum without interest within 60 days from the date of issue of the allotment letter or in six yearly installments of Rs. 3,99,634/-. The installment was recoverable together with interest on the balance price @ 12% p.a. on the remaining amount. It was also stipulated that the interest shall, however, accrue from the date of offer of possession. The possession of the plot was to be offered within a period of 3 years from the date of allotment after completion of development work in the area and in case possession of the plot is not offered within the prescribed period of three years from the date of allotment, HUDA will pay interest at the rate of 9% p.a. (or as may be fixed by Authority from time to time) on the amount deposited by the allottee after the expiry of three years till the date of offer of possession. In case of delay in installment, the same was to be paid along with interest @ 15% p.a. The complainant opted to deposit the balance amount by way of six yearly installments and the amount so deposited by the complainant had been duly credited in his account. The development work/Services i.e. Water Supply, Sewerage, electrification and roads were completed in Sector-1 Taraori and only after completion of development work in the area, the possession of the plot in question was offered to the complainant vide letter No.31 dated 28.09.2018. Since the possession has been offered to the complainant, therefore, as per clause No. 6 of the allotment letter, interest at 12% p.a. on all remaining amount of installments will accrue from this date, so, the installments were demanded from the complainant alongwith possession interest. Vide offer of possession dated 28.09.2018, the complainant was intimated that he can obtain the possession by visiting personally or through some authorized representative on any working day within 30 days of date of issue of the said letter. However, the complainant failed to come forward to get the physical possession within the stipulated period. It is, however, submitted that complainant applied for physical possession vide letter dated 29.07.2019 but the request was declined on account of pending dues at that time. The complainant is not entitled to claim the waiving of possession interest since the possession of the plot in question was offered to the complainant after development of said area, within the stipulated period. The OPs had rightly charged the possession interest. The entire area is fully developed in all respect since the facilities of water supply, roads, electrification and sewerage had been provided in the said area. The complainant is trying to misled the Hon'ble Commission by wrongly interpreting the letter dated 11.12.2020. Rest of the averments of the complainants were denied by the OPs and prayed for dismissal of the present complaint.
4.           Complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 to C-25 and closed the evidence of the complainant. On the other hand, learned counsel for the OPs tendered affidavit of Devraj Poswal, Deputy Superintendent, O/o Estate Officer, HSVP, Karnal as Annexure R-X, alongwith documents Annexure R-1 to R-8 and closed the evidence on behalf of OPs.
5.           We have heard the complainant and learned counsel for the OPs and carefully gone through the case file.
6.           The complainant submitted that since the possession so offered by the OPs vide letter dated 20/28.09.2018 was paper possession, as there was no development at the project site, as such, he was not obliged to take over the same and was entitled for refund of the amount paid, but the OPs by not refunding the amount have committed deficiency in providing service and also indulged into unfair trade practice.
7.           On the contrary, the learned counsel for the OPs submitted that because the possession so offered to the complainant, vide letter dated 20/28.09.201818 was genuine possession, yet, by not taking over the same, he has breached terms and conditions of the allotment letter and as such now he needs to surrender the plot in question, whereafter, amount paid by him will be refunded after deduction of applicable charges. He further submitted that under the provisions of arbitration clause in the allotment letter, this complaint before this Commission is not maintainable and also it lacks territorial jurisdiction.
8.           First coming to the objection of territorial jurisdiction taken by the OPs, it may be stated here that since the complainant is a resident  of Ambala, City which falls within the territory of this Commission, as such, this Commission has territorial jurisdiction to entertain and decide this complaint, as envisaged under section 34 (2) (d) of Consumer Protection Act, 2019. As far as plea taken by the OPs that the parties have agreed that all the disputes shall be settled within the jurisdiction of the Estate Officer, HUDA at Karnal only, it may be stated here that it is settled law that to emphasize the clause relating to jurisdiction of courts in the agreement between the parties, cannot by itself over-ride the statutory right of the complainant/consumers, conferred by the provisions of the Consumer Protection Act and failure to adopt the same, will defeat the purpose and object of the Act. Our this view is supported by the observations made by the Hon’ble National Commission in the case of Neha Singhal Vs. Unitech Limited and Abhishek Singhal vs. Unitech Limited, II (2011) CPJ 88 (NC), relevant part whereof is reproduced hereunder:-
   1. " 3. ….In a similar case (FA No. 425 of 2010 Munish Sahgal vs DLF Home Developers Limited), the State Commission had taken the same view. The above-mentioned appeal was allowed by this Commission, vide order dated 9th February 2011, based on the decision dated 11th April 2002 of a 3 Member Bench of this Commission in FA No. 142 of 2001 (Smt Shanti vs M/s. Ansal Housing and Construction Ltd.) The only point of some relevance in this case is that the housing property in question is located in NOIDA, Gautam Buddha Nagar, Uttar Pradesh. However, that fact alone cannot suffice to oust the territorial jurisdiction of the (Delhi) State Commission to adjudicate upon the complaint, in view of the specific provisions of section 11 (2) (b) of the Consumer Protection Act, 1986 (the Act). To emphasise, the clause relating to jurisdiction of courts in the agreement between the parties cannot by itself over-ride the statutory right of the appellant/ complainant conferred by the above-mentioned provision of the Act that would defeat the purpose and object of the Act. This view is also in accord with the provisions of section 28 of the Indian Contract Act, 1872 (as amended with effect from 8th January 1997).

 

In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)=VII (2011) SLT 371,  the principle  of law laid down was  that the restriction of jurisdiction to a particular Court need not be given any importance in the facts and circumstances of the case.  Thus plea taken by the OPs in this regard is rejected.

9.           Coming to the objection raised with regard to jurisdiction of this Commission in the face of existence of Arbitration clause no.20 contained in  the allotment letter, it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission and set at rest 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 complainant 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. As such, this objection raised by the OPs is also rejected.
10.           The next question that falls for consideration is, as to whether, genuine offer of possession of the plot in question, complete in all respects, was offered to the complainant by the OPs vide letter dated 20/28.09.2018, Annexure R-2 or not. It may be stated here that it is well settled law that possession of the residential unit/plot has to be offered and delivered after completion of all the development activities and also after obtaining completion certificate. In REVISION PETITION No. 2942 OF 2017, M/S. R.K. CONSTRO PROJECTS PVT. LTD. Vs. AMOL SUBHASH CHAVAN & 4 ORS. decided on  24 Oct 2017  it was held by the Hon’ble National Commission that possession offered without any completion certificate has no value. Relevant part of the said order is reproduced hereunder:-

“……….In view of the admitted position that the Completion Certificate has not yet been obtained by the Petitioner, the plea that the possession of the flat was offered in the year 2012 itself is of   no consequence.  The Complainant was not obliged to accept the flat without Completion Certificate, even if it is assumed for the sake of argument that its possession was offered in the year 2012.  Under the given circumstances, as rightly observed by the Fora below that the Petitioner not being in a position to deliver the possession of the flat to the Complainant, complete in every respect, the direction to the Petitioner/Developer to refund the amount received from the Complainant as far back as in the year 2011 with simple interest @ 11% p.a. cannot be faulted with…..” 

         

The Hon’ble Supreme Court also in the case titled as Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr on 10 July, 2008 has held that before offering possession of residential units/plots, the builder cannot escape the liability for securing the Occupation and Completion Certificates and providing a copy of the same to the allottee.

11.           We have gone through the contents of letter dated 16.04.2009, Annexure C-13 having been written by the Chief Administrator, HUDA, Panchkula, to all the Zonal Administrators and Estate Officers of HUDA, whereby it was directed that possession of the plots in the projects has to be delivered, only after development of basic services i.e. water supply, approach road, sewerage and electrification. However, when we also go through the RTI Information dated 11.12.2020, Annexure C-9 having been issued by Executive Engineer, HSVP, Division, Karnal, to Mr.Parveen Kumar, similar located allottee of the project, in question i.e. HUDA, Sector 1, Tararori, Karnal, it has been candidly informed therein to the applicant that Disposal of sewerage is not practicable till the sewerage lines not filled up with sewerage to run by gravity. Hence the disposal will be constructed till the fully development/occupied by the house owners of sector. The OPs have not disputed that this RTI information did not belong to the project in question. Hence it is proved from the contents of the said RTI letter that even by 11.12.2020, sewerage treatment plant (STP) has not been made operational at the project site. Secondly, the OPs have failed to place on record any cogent and convincing evidence to prove that the project in question has been developed and made habitable complete in all respects and that completion certificate has been received in that regard. Thus, since neither it has been proved by the OPs that the project is complete in all respects including the operation of sewerage treatment plant (STP) nor  completion certificate has been placed in respect of the project in question, as such, in our considered opinion, the possession so offered by the OPs vide letter dated 20/28.09.2018, Annexure R-2 was nothing but mere a paper possession and the complainant was not obliged to take over the same, in view of ratio of law laid down in M/s R.K. CONSTRO PROJECTS PVT. LTD.  case (supra).
12.           At the same time it is also held that in the first instance, by offering paper possession of the plot in question by the OPs and now stating that the refund can be made only if the complainant surrenders the plot in question, with a view to usurp the booking amount, amounts to deficiency in service and adoption of unfair trade practice. This act of the OP needs to be deprecated.
13.           The next question that falls for consideration is, as to whether, the complainant is entitled to get his amount back from the OPs or not and if yes at what rate of interest?  It may be stated here that even during the pendency of the complaint even, the OPs have failed to place on record any evidence to prove that the STP has been made operational at the project site and that the completion certificate has also been obtained by it. Under these circumstances, an adverse inference can be drawn against the OPs that the project is not habitable. It is significant to mention here that the plot in question was purchased in the year 2015 and more than 7 years have elapsed the complainant has not been delivered actual physical possession of the plot in question and on the other hand, mere paper possession was offered by the OPs, which is not sustainable in the eyes of law, as explained above. We cannot make the complainant to wait for an indefinite period at the whims and fancies of the OPs. Therefore, the complainant in the present case is entitled to get refund of his amount alongwith interest @11% p.a. from the respective dates of deposits, as has been held by the Hon’ble National Commission, under similar circumstances, in M/s R.K. CONSTRO PROJECTS PVT. LTD.  case (supra).
14.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs, in the following manner:-
    1. To refund the amount of Rs.26.12 lacs to the complainant, alongwith interest @4% p.a. from the respective dates of deposits, till realization.
    2. To pay compensation Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.3,000/- as cost of litigation.

                   The OPs are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the OPs shall pay interest  @ 6% per annum on the awarded amount besides litigation costs, for the period of default, till realisation. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced on: 02.09.2022.

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President