Per Justice Sham Sunder , President The facts, in brief, are that the complainant booked a showroom, with super area of 400 sq. feet, which was allotted to him, vide allotment letter dated 28.2.2006 in Showroom Category-C, in an upcoming shopping mall, to be constructed by the OPs at Mohali. It was stated that the complainant intended to use the said showroom, for running his business, to earn his livelihood, by way of self employment. Alongwith the application, the complainant deposited a sum of Rs.3,60,000/-, as required by the OPs, which was duly acknowledged vide acknowledgment slip dated 17.2.2006. The complainant, in all, deposited a sum of Rs.20,80,000/- with the OPs, on various dates, towards the price of the aforesaid showroom, and the receipts regarding the receipt of the said amount, were issued by them. The OPs promised to hand over the possession of the said showroom, to the complainant, within a period of two years, from the date of allotment i.e. 28.2.2006. The complainant personally visited the office of the OPs, and sought clarification, from them, about the schedule of completion of the showroom. It was stated that, by the stipulated date i.e. 28.2.2008, no progress regarding the construction of the showroom had been made. It gave rise to an apprehension, in the mind of the complainant, that the commitment made by the OPs, regarding handing over of the possession of the showroom, by due date, lacked bonafides. In the meanwhile, the complainant came to know about a new advertisement issued by the OPs, in a reputed newspaper, about the showrooms of the same shopping mall. As per that advisement, the scheme commenced on 28.11.2006 and closed on 12.12.2006. According to this advertisement, a new time frame was fixed, for handing over the possession by December,2008, instead of February,2008, which was earlier committed by the OPs. On 23.5.2007, the complainant sent a letter to the OPs to clarify the position and their commitment to handover the possession, as by that time, he had already deposited a sum of Rs.20,80,000/-. To the dismay of the complainant, another advertisement by the OPs, regarding the showrooms of the same shopping mall, appeared in a newspaper in October,2007. As per this advertisement, in the newspaper, it was mentioned that the possession would be handed over within two years i.e. by October,2009. It was further stated that, in these circumstances, the complainant was left with no alternative, than to ask for the refund of amount, with interest and compensation. He also sent a number of notices, including the one dated 24.12.2010 to the OPs, for the refund of amount. It was further stated that even till 24.12.2010, no progress, in the construction of the showrooms, had been made. It was further stated that neither possession was delivered to the complainant upto 28.2.2008, nor the refund of amount was made. It was further stated that the aforesaid acts of the OPs, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, 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), for the refund of amount of Rs.20,80,000/- with interest and compensation, or in the alternative, compensation by way of interest @18% on the total amount from 28.2.2008, till possession of the showroom was handed over, alongwith compensation for loss of income, mental agony and physical harassment, was filed. 2. In the written reply, filed by OP Nos.1 & 2, it was pleaded that the complaint was not maintainable. It was further pleaded that the complainant did not fall within the definition of ‘consumer’ as he purchased the showroom for commercial purpose, for carrying on commercial activities. It was further pleaded that the complaint was not maintainable, as an arbitration clause, exists, in the application form,and in case of any dispute, the matter was to be referred to the arbitration. It was admitted that the complainant booked a showroom with the OPs vide application No.1909. It was denied that the showroom was allotted to the complainant. It was further stated that the complainant was only intimated by the OPs vide letter dated 28.2.2006 that application No.1909 submitted by him, was accepted, for registration for allotment of a commercial showroom in Shalimar Plaza I.T.City Mohali. It was admitted that the possession of the showroom was to be delivered, within a period of two years i.e. upto 28.2.2008. It was also admitted that the amount of Rs.20,80,000/-, in all, was deposited by the complainant, towards the price of showroom, which was booked by him. It was further stated that the completion of the project, was delayed, as the other buyers like the complainant, had not paid the due instalments, due to which, the OPs suffered a huge loss. It was further stated that the complainant did not pay 5th quarterly installment, in terms of condition No.12 of the application form. It was further stated that the construction and development work of the shopping mall, at the site, was in full swing, but even then, as a goodwill gesture to fulfill their part of the obligation, the OPs were ready to pay the damages @ Rs.10/- per sq.feet, per month, in terms of Condition No.12 of the application form. It was further stated that delay of the project, was never in the interest of the OPs. It was further stated that, in the complaints, filed by other complainants, before this Commission earlier, regarding the same project, order regarding the refund of amount, was passed, alongwith compensation, interest and costs. It was further stated that in the appeals filed by the OPs, in those cases, on the basis of agreement/settlement, between the parties, the OPs were directed to handover possession to the allottees therein, within a period of 8 months from 13.5.11, failing which the appeal filed by them was deemed to be dismissed. It was denied that the OPs were deficient, in rendering service, or indulged into unfair trade practice. The remaining allegations, were denied, being wrong. 3. The parties led evidence, in support of their case. 4. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 5. The Counsel for the complainant, submitted that, despite deposit of a sum of Rs.20,80,000/- from time to time, towards the price of showroom, booked by the complainant, with the OPs, they failed to deliver possession of the same upto 28.2.2008, the date stipulated, in the application. He further submitted that even, by the time, the complaint was filed in the year 2011, there was no progress of construction at the site. He further submitted that since no progress of construction of the showroom , was taking place at the site, and the OPs had not fulfilled their obligation, according to the terms and conditions, contained in the application P-1, he was not bound to deposit the remaining instalments. He further submitted that the OPs could not furnish any sufficient cause, as to why, the completion of project was delayed, and why the possession was not given within the time committed. He further submitted that the other cases, referred to, by the Counsel for the OPs, were decided by the National Commission, on the basis of an agreement between the parties. He further submitted that the OPs were not only deficient, in rendering service, but also indulged into unfair trade practice. He further submitted that the complainant is, thus, entitled to the refund of amount with interest, from the date, stipulated for delivery of possession i.e. 28.2.2008 till realization, compensation for loss of income, and for mental agony and physical harassment. 6. On the other hand, the Counsel for the OPs, submitted that the project, no doubt, was not completed within the time frame. He further submitted that the construction was in full swing and possession could be delivered within 6 to 8 months. He further submitted that even the complainant did not adhere to the obligation cast upon him, as per the terms and conditions of application P1, as he did not deposit the 5th quarterly instalment. He further submitted that delay in the project was due to the factum, that the other persons, including the complainant, who had booked the showrooms, had not made payment of instalments. It was further submitted that the OPs were ready to pay compensation @ Rs.10/- per square feet, per month, on the super area for delay in handing over the possession of showroom , beyond the period committed. He further submitted that the complainant did not fall within the definition of consumer. He further submitted that the OPs were not deficient, in rendering service, nor they indulged into unfair trade practice. 7. There is, no dispute, about the factum that the complainant booked a showroom, referred to above, with the OPs. There is also hardly any dispute that the total amount of Rs.20,80,000/- on various dates, was deposited with the OPs towards the price of showroom. As per clause 12 of Annexure P-I, possession of showroom was to be given within two years, from the date of issuance of acceptance-cum-demand letter, subject to force maejure circumstances. It was admitted by the OPs that the possession was to be delivered, on or before 28.2.2008. Admittedly, possession of the showroom has not even so far been delivered to the complainant. By not delivering the possession within the period of two years i.e. upto 28.2.2008, the OPs, could certainly be said to be deficient, in rendering service. 8. No doubt, a period of two years could be extended due to force maejure circumstances. It was for the OPs, to clearly explain, in the written reply, as to what were those circumstances, which were beyond their control, as a result whereof, the construction could not be completed, in time, and the possession could not be delivered by 28.2.2008. In the written reply, the only plea taken up by the OPs was, to the effect, that the other buyers, like the complainant, did not make the payment of instalments, in time, as a result whereof, there was delay in the completion of project. No evidence, in this regard was, however, produced by the OPs. It may be stated here, that the complainant, in this case, has already deposited a huge amount of Rs.20,80,000/- towards the price of the showroom. When the complainant found that there was no progress, in the construction of project, at the site, it was not obligatory upon him, to pay the remaining instalments, until the assurance had been held out to him, that the project would be completed in the very near future. As stated above, till date, the project has not been completed, nor possession of the showroom has been delivered to the complainant. Since, the OPs failed to adhere to the terms and conditions contained in P-1, they could not blame the complainant for not making payment of 5th quarterly instalment. The instalments against the price of the showroom, were to be paid, as per the construction linked plan. Since, the construction was not being undertaken, as per schedule, if the complainant did not pay 5th quarterly instalment, he could not be held responsible for delay, in the completion of project. The OPs, therefore, failed to prove, any circumstance, beyond their control, due to which the construction was delayed. The plea, referred to above, taken up by the OPs, in the written reply, therefore, appears to be false . The said plea was taken by them, just with a view to cover up their lapse, and to deny the refund of amount, claimed by the complainant. The submission of the Counsel for the OPs, being devoid of merit, must fail, and the same is rejected. 9. The Counsel for the OPs, submitted that, they were ready to give compensation @ Rs.10/- per sq. feet, per month for the period of delay as per condition No.12 of the document P-1 and, as such, the complainant was not entitled to the refund of amount alongwith interest and compensation. The submission of the Counsel for the OPs, does not appeal to reason. If compensation of Rs.10/- per sq. feet, per month, would justify the claim of the complainant, and no further relief is given, that would give unnecessary advantage to the OPs, because they may still neglect to raise construction for a number of years, by simply paying Rs.10/- per sq.ft. i.e. Rs.4000/- per month. The OPs must be earning interest on the amount of Rs.20,80,000/- which was deposited with them, from time to time, by the complainant. Even the modest interest @ 8% p.a., which the OPs may be earning on Rs.20,80,000/-, comes to Rs.13866/- per month i.e. much more than the amount which they are ready to pay @ Rs.10/- per sq.feet per month. This compensation might have been said to be sufficient, in case, the complainant had prayed for delivery of possession of the showroom. No specific prayer was made for delivery of possession. Even, at the time of arguments, the Counsel for the complainant, in clear- cut terms, submitted that the complainant, only claims refund of amount, with interest and compensation. 10. Although, a period of more than three yeas from 28.2.2008, the date committed for handing over the possession, has lapsed, yet the construction is not complete. No doubt, the Counsel for the OPs, submitted that, the construction at the site, was in full swing. However, such a submission of the Counsel for the OPs, cannot be taken into consideration. Such a plea may be another excuse, on the part of the OPs, to delay the refund of hard earned money already deposited with them, by the complainant. 11. Reference, no doubt, was made by the Counsel for the OPs, that in the appeals, filed by the OPs, in the National Commission, against the decision, rendered in other complaints, relating to this project, by this Commission, an agreement was arrived at between the parties, and, on the basis of the same, the time for delivery of possession was extended for a period of 8 months from 13.5.2011, failing which, it was ordered that the appeals would be deemed to be dismissed. It may be stated here, that, in the instant case, there is no agreement between the parties. The Counsel for the complainant, at the time of arguments, did not agree to the submission of the Counsel for the OPs, for giving the OPs more time, for delivery of possession. On the other hand, he insisted that the complainant was entitled to the refund of the amount, deposited by him, with the OPs, from time to time, with interest and compensation. Had both the parties, in the instant case, agreed to the passing of such an order, the matter would have been different. Under these circumstances, no help can be drawn, by the Counsel for the OPs, from the orders aforesaid of the National Commission. The submission of the Counsel for the OPs, therefore, being devoid of merit, must fail, and the same is rejected. 12. The complainant, was not only deprived of the use of his hard earned money, for a long time, which was deposited with the OPs, but he also suffered a lot of mental agony and physical harassment, as till date not even a single penny, has been refunded by them, nor possession of the showroom has been delivered. For such harassment, the complainant is also entitled to compensation. 13. Coming to the submission of the Counsel for the OPs, that the complainant did not fall within the definition of ‘consumer’, it may be stated here, that the same being devoid of merit, deserves to be rejected. In the complaint itself, the complainant, in clear-cut terms, stated that he had booked the showroom, for using the same to earn his livelihood, by way of self employment. No evidence was produced by the OPs, to the contrary, that the showroom was booked by the complainant, with a view to give the same, on rent, for generating profits, and not for the purpose of self employment for earning livelihood by him (complainant). Under these circumstances, it cannot be said the complainant does not fall within the purview of ‘consumer’. The submission of the Counsel for the OPs, in this regard, being devoid of merit, must fail and the same stands rejected. 14. The next question, that arises for consideration, is, as to whether, the complaint under Section 17 of the Consumer Protection Act, is not maintainable, on account of the reason, that an arbitration clause exists in P-1. 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 document P-1, would not oust the jurisdiction of the Consumer Fora, 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 (2003)2 SCC412 and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2006)3 SCC721. In this view of the matter, the submission of the Counsel for the OPs, being devoid of merit, must fail, and the same stands rejected. 15. For the reasons, recorded above, the complaint must succeed and the same is accordingly partly accepted with costs of Rs.10,000/-, in the following terms ; (i) The OPs are directed to refund Rs.20,80,000/-, deposited by the complainant, with interest @ 15% p.a. from the promised date of delivery of possession i.e. 28.2.2008, till the actual realization of the amount, as claimed by him ( complainant). (ii) The OPs are also directed to pay compensation, in the sum of Rs.one lac, for causing mental agony and physical harassment to the complainant, by neither handing over possession of the showroom by the committed date, nor refunding the amount. (iii) The aforesaid directions shall be complied with by the OPs within a period of 30 days, from the date of receipt of a copy of the order, failing which, they shall be liable to pay the aforesaid payable amounts, with penal interest @ 18% p.a., besides costs of Rs.10,000/- 16. Certified Copies of this order be sent to the parties, free of charge. 17. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
