Chandigarh

StateCommission

CC/294/2015

Kamaldeep Kaur - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Savinder Singh Gill

08 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	294 of 2015
Date of Institution	:	02.12.2015
Date of Decision	:	08.04.2016

 

1. Kamaldeep Kaur wife of Sh.Sukhjit Singh, resident of #E-401, EC-2, Essel Towers, MG Road, Gurgaon, Haryana, through her General Power of Attorney, Sh.Sukhjit Singh, r/o #E-401, EC-2, Essel Towers, MG Road, Gurgaon, Haryana.
2. Sh.Sukhjit Singh son of Sh.Sewa Singh, r/o #E-401, EC-2, Essel Towers, MG Road, Gurgaon, Haryana.

 

……Complainants

V e r s u s

Unitech Limited, SCO 189-191, Sector 17C, Chandigarh, through its Managing Director/Authorized Signatory.

…..Opposite Party

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:       Sh.Savinder Singh Gill, Advocate proxy for the        complainants.

      Sh.N.S. Jagdeva, Advocate proxy for Ms.Vertika      H.Singh, Advocate for the opposite party.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

            Vide our separate detailed order of the even date, recorded in consumer consumer complaint bearing no.251 of 2015 titled as Sh.Manish Aggarwal Vs M/s Unitech Limited and another, this complaint has been partly accepted, with costs, as per the directions given therein. 

2.       Certified copy of the order passed in consumer complaint bearing no.251 of 2015, shall also be placed on this file.
3.       Certified copy of the main order, alongwith this order be sent to the parties, free of charge.
4.       The file be consigned to Record Room, after completion.

 

Sd/-                        Sd/-                              Sd/-

(DEV RAJ) MEMBER

(JUSTICE JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

Rg.

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	251 of 2015
Date of Institution	:	28.10.2015
Date of Decision	:	08.04.2016

 

Sh.Manish Aggarwal son of Dr.M.L. Aggarwal, H.No.969, First Floor, Sector 70, Mohali.

 ……Complainant

 

V e r s u s

 

1. M/s Unitech Limited, Real Estate Division (Marketing) Ground Floor, Signature Towers, South City 1, NH-8, Gurgan-122001, through its Managing Director.
2. M/s Unitech Limited, Regional Office, SCO No.189-90-91, Sector 17-C, Chandigarh, through its Director Marketing.
3. M/s Alice Developers Private Limited, Basement, 6, Community Centre, Saket, New Delhi-110017.
4. Panjab Urban Planning and Development Authority, PUDA Bhavan, Sector 62, Phase VIII, SAS Nagar.

              ....Opposite Parties

 

Argued by: Sh.Pankaj Chandgothia, Advocate for the complainant.

Sh.N.S. Jagdeva, Advocate proxy for Ms.Vertika H.Singh, Advocate for the opposite parties no.1 to 3.

 

================================================

Complaint case No.	:	294 of 2015
Date of Institution	:	02.12.2015
Date of Decision	:	08.04.2016

 

1. Kamaldeep Kaur wife of Sh.Sukhjit Singh, resident of #E-401, EC-2, Essel Towers, MG Road, Gurgaon, Haryana, through her General Power of Attorney, Sh.Sukhjit Singh, r/o #E-401, EC-2, Essel Towers, MG Road, Gurgaon, Haryana.
2. Sh.Sukhjit Singh son of Sh.Sewa Singh, r/o #E-401, EC-2, Essel Towers, MG Road, Gurgaon, Haryana.

 

……Complainants

V e r s u s

Unitech Limited, SCO 189-191, Sector 17C, Chandigarh, through its Managing Director/Authorized Signatory.

…..Opposite Party

 

Argued by:       Sh.Savinder Singh Gill, Advocate proxy for the        complainants.

      Sh.N.S. Jagdeva, Advocate proxy for Ms.Vertika      H.Singh, Advocate for the opposite party.

=======================================================          

Complaints under Section 17 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

            By this order, we propose to dispose of, following cases:-

	CC/251/2015	Sh.Manish Aggarwal	Vs	M/s Unitech Limited and another
	CC/294/2015	Kamaldeep Kaur and another	Vs	Unitech Limited

 

2.       Arguments were heard in common, in the above cases, alongwith some other complaints against real estate developers namely PUMA Realtors Private Limited (allowed vide order dated 01.04.2016), Emaar MGF Land Limited (allowed vide order dated 04.04.2016) and Sushma Builtech.
3.       The issues involved in all these cases, except minor variations, here and there, of law and facts are the same. In case no.251 of 2015, complaint has been filed with regard to non-delivery of possession of an apartment/flat, whereas, in case no.294 of 2015, complaint has been filed, with regard to non-delivery of possession of a plot, by the builder. The primary disputes are with regard to the applicability of Section 8 (amended) of the Arbitration and Conciliation Act, 1996 and also, as to whether, as on today, construction of the unit as also development at the site, was complete in all respects, alongwith basic amenities or not. Other issues like, that the complainant were not consumers, as they have invested the money only to earn profit, in future; this Commission did not vest with pecuniary and territorial jurisdiction etc. were also raised in the above cases. The objection qua applicability of Section 8 (amended) of the Arbitration and Conciliation Act, 1996 was pressed as a preliminary issue, however, when arguments were concluded on 15.03.2016 and complaint was reserved for orders, the following order was passed. Relevant portion of the order reads thus:-

“Counsel for the parties are in agreement that issue regarding applicability of Section 8 of Arbitration and Conciliation Act, 1996 be decided when passing order on merits in the complaint”.

4.       Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.251 of 2015 titled as Sh.Manish Aggarwal Vs M/s Unitech Limited and another. It is case of the complainant that allured by advertisements made by opposite parties no.1 to 3, in respect of their project, launched under the name and style of “Gardens”, Sector 97, Uniworld City, Mohali, Punjab, he (complainant) moved an application for purchase of residential flat. Alongwith the said application, the complainant paid an amount of Rs.4 lacs, towards booking amount. As such, the complainant was allotted Flat No.A2-05-0504 (3 Bedroom), measuring super area 1485 square feet (in short the unit), in the said project, vide Allotment Letter dated 01.12.2010 Annexure C-2. Total sale consideration of the said unit was to the tune of Rs.38,48,400/-, which included basic price; External Development Charges (EDC) and Infrastructural Development Charges (IDC).
5.       Apartment Allotment Agreement dated 17.03.2011 Annexure C-6, in respect of the said unit, was executed between the parties. As per Article 4.a.(i) of the Agreement, opposite parties no.1 and 2 were to deliver possession of the unit, in question, to the complainant, within a period of 36 months, from the date of execution of the same (Agreement) i.e. by 16.03.2014, subject to force majeure circumstances.    
6.       It is stated that the complainant made payments to opposite parties no.1 and 2, as and when demanded by them, after raising loan to the tune of Rs.30 lacs, from the HDFC, vide Loan Agreement Annexure C-8.  It was further stated that despite the fact that the amount of Rs.36,99,822/- i.e. more than about 95% of the sale consideration, had already been paid by the complainant, possession of the unit, was not even offered to him, by the stipulated date, for want of construction and basic amenities, what to speak of delivery thereof. Various emails sent to opposite parties no.1 and 2, in the matter, yielded no results. It was further stated that, on account of non-delivery of possession of the unit, in question, the complainant was forced to live in a parental/joint family.  It was averred that till date, opposite parties no.1 and 2, are not in a position to deliver possession of the unit, and on the other hand, are utilizing the money deposited by the complainant. It was further averred that as per the present status of project, it seems that opposite parties no.1 and 2, will not be able to deliver possession of the unit, even in the near future.
7.       It is stated by the complainant that he has visited the office of opposite parties no.1 and 2, a number of times, with a request to apprise him about exact date of delivery of possession of the unit, but they failed to give any satisfactory answer.  
8.       By stating as above, physical possession of the unit, in question or in the alternative, refund of the amount deposited was sought, besides compensation for  deficiency in providing service, adoption of unfair trade practice, mental and physical harassment and litigation expenses, by way of filing the instant complaint.
9.       Upon notice, written reply as also application under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996, were filed by opposite parties no.1 to 3, taking numerous preliminary objections, stating that in the face of existence of arbitration clause in the Agreement to settle disputes between the parties, this Commission has no jurisdiction to entertain the same (complaint). To say so, reliance was placed on Article 13 b of the Agreement. It is asserted that the unit, in question, was purchased for future gain, as such, the complainant would not fall within definition of a consumer, as defined under Section 2 (1) (d) of 1986 Act. It is averred that jurisdiction issues be decided as preliminary issues and only thereafter, decision be taken on merits.
10.       On merits, it is admitted that the complainants had purchased a residential unit, from opposite parties no.1 and 2. Fact qua basic price of the unit, as mentioned in the complaint is admitted. Charges qua EDC, PLC etc. are also admitted, as a matter of record. The amount paid by the complainant, as mentioned in the complaint was not disputed. It is also not disputed that the complainant availed of loan from the HDFC, as mentioned by him, in his complaint, to pay installments, towards price of the said unit. It is pleaded that this Commission has no territorial and pecuniary Jurisdiction to entertain and decide the complaint. It is stated that consumer complaint was not maintainable, and only a suit for specific performance, in the Civil Court, for the enforcement of the Agreement, could be instituted. It is admitted that as per Article 4.a.(i) of the Agreement, opposite parties no.1 and 2 were to hand over possession of the unit, in question, to the complainant within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions. It is clarified that opposite parties no.1 and 2, could not hand over possession of the unit to the complainant, as there was global meltdown of the economy worldwide, resulting into cash crunch throughout and also due to some objection raised by the Punjab State Power Corporation Limited (PSPCL), electricity could not be made available at the site, by opposite parties no.1 and 2, due to which, rest of the development work and the basic amenities had been delayed. It is stated that development work at the site, is being carried out in full swing and opposite parties no.1 and 2, are making sincere efforts to hand over possession of the said unit, to the complainant, in the near future. It is averred that it is well within the knowledge of the complainant that for any delays, stipulated penalty has been provided in the Agreement, which safeguarded his rights. It is stated that, in case, still the complainant sought refund of the amount deposited, in that event, forfeiture Clause would attract, as envisaged in the Agreement. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
11.       The complainant and opposite parties no.1 to 3, led evidence in support of their cases, alongwith which, number of documents were attached. 
12.       On completion of the proceedings, arguments of the parties concerned, in both the cases, were heard, in detail.
13.        Counsel for the complainant has addressed his arguments, in terms of the facts stated in earlier part of this order. It is further stated that despite making payment of Rs.36,99,822/- i.e. more than about 95% of the sale consideration, possession of the unit was not even offered to the complainant within the stipulated period, or even as on today, for want of construction of the same; development and basic amenities and further that amended provisions of Section 8 of 1996 Act, are not applicable in the face of existence of Section 3 of 1986 Act and that the complainant is not a speculator. At the time of arguments, Counsel for the complainant pressed only for refund of the amount deposited, alongwith compensation and litigation expenses.
14.       Counsel for opposite parties no.1 to 3, has vehemently contended that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It was further argued that, may be, taking note of un-amended provisions of Section 8 of 1996 Act vis-à-vis Section 3 of 1986 Act, it had earlier been said that the Consumer Foras have jurisdiction to entertain a complaint, as Section 3 provides additional remedy to the consumers and existence of arbitration clause in the agreement would not bar jurisdiction of the Consumer Foras, however, with amendment in Section 8 of the 1996 Act, position has changed. In a way, he made an attempt to say that amendment in Section 8 of 1996 Act, leaves no power, with the Consumer Foras to entertain any consumer complaint, in cases, wherein provisions for settlement of disputes is provided through arbitration. To buttress his arguments, he has referred to Article 13 b.  of the Agreement, which reads thus:-

“Arbitration:-

13b. However disputes, differences or disagreements arising out of, in connection with or in relation to this Agreement, which cannot be amicably settled, shall be finally decided by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996. Arbitration as aforesaid shall be a domestic arbitration under the Applicable Laws.”

15.       He submitted that development work at the site, is being carried out in full swing and opposite parties no.1 and 2, are making sincere efforts to hand over possession of the said unit, to the complainant, in the near future.
16.       Above arguments were controverted by Counsel for the complainant, in rebuttal.
17.       The principal question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that under similar circumstances, in a case titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, this Commission, brushed aside similar argument, raised by Senior Counsel for the builder, while holding as under:-

“24 Before dealing with the legal issues, it is necessary to note down amended and unamended provisions of Section 8 of 1996 Act and other provisions, which were added in the 1996 Act (principal Act), by the Arbitration and Conciliation Amendment Act, 2015, which was signed by the Hon'ble President of India on 31.12.2015.

            Unamended provisions of Section 8 of 1996 Act, reads thus:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

25.        After amendment, Section 8 of 1996 Act, reads as under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

26. The provisions which needs interpretation/ explanation, as added in the principal Act, have been underlined, in the above extracted paragraph. Vide the 2015 Act, in principal Act, Fourth Schedule was added with it, scale of fee, to be charged by an Arbitrator has been prescribed. Besides as above, by making amendment in Section 11 of 1996 Act, it is provided that any application of the contesting parties to appoint an Arbitrator is to be decided by the High Court/its nominee expeditiously as possible and an effort be made to dispose of the same, within 60 days, from the date of service of notice upon the opposite party. Further, by making an amendment in the principal Act, Section 29 A has been added providing that an Arbitrator is supposed to make an award within 6 months from the date the Arbitral Tribunal enters upon the reference. There is a provision for extending the time period for 6 months more, with consent of the parties. Thereafter, the Court has been given power to extend it, in case of need. As per Section 34 of 1996 Act, the award so passed, can be challenged before the Court. As per amended provisions added in the principal Act, the Court is supposed to dispose of the said dispute within a period of one year, from the date, on which the notice is served upon the opposite party. As per law, the matter can further be challenged in the High Court and may be, thereafter, it will go to the Hon'ble Supreme Court of India.

27.  Now, we would like to deal with applicability of Section 8 (amended) of the principal Act, to the proceedings before this Commission. It is to be decided, as to whether, in the face of existence of an arbitration clause in the Agreement, it is open to this Commission, to entertain a consumer complaint, in terms of provisions of Section 3 of 1986 Act or not.

            Here, it is necessary to reproduce the provisions of Section 3 of 1986 Act, for consideration:-

“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.”

28   Such issue was also raised, when unamended provisions of Section 8 of 1996 Act, was in existence. Similar argument was raised that when settlement of disputes is provided through arbitration in the Agreement, the consumer complaint is not maintainable. In umpteen number of cases, it is held by the Hon'ble Supreme Court of India, National Commission and various State Commissions, that Section 3 of 1986 Act provides additional remedy and existence of arbitration clause, in the Agreement, to settle disputes between the parties, is not a bar to entertain a complaint filed by the consumer, alleging deficiency in providing service etc.

            A similar issue came up before this Commission in Sh.Dharam Pal Gupta Vs. M/s Emaar MGF Land Limited and another, Consumer Complaint No.147 of 2015, decided on 13.10.2015. After noting the ratio of judgments of the Hon'ble Supreme Court of India, in various cases, and also of the National Commission, it was observed as under:-

It was next vehemently argued by Counsel for Opposite Parties No.1 and 2 that the complaint filed under Section 17 of the Act, was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Buyer’s Agreement. To say so, reference was made to Clause 42 of the Buyer’s Agreement, which reads thus:-

“42. In the event of any dispute arising out of or touching upon or in relation to the terms of this Agreement or its termination, including the interpretation and validity thereof and the respective rights and obligations of the Parties shall be settled amicably by mutual discussion, failing which the same shall be settled through arbitration of an Arbitrator to be appointed (by?) the Company. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996, or any statutory amendments, modifications or re-enactment thereof for the time being in force and shall be held at New Delhi. The Courts at Mohali alone shall have the territorial jurisdictions in all matters arising out of/touching and/or concerning this Agreement”

It is stated that in case of dispute, an attempt will be made to settle the same, in an amicable manner, failing which, the same shall be referred to an Arbitrator in terms of Arbitration and Conciliation Act, 1996 (in short the 1996 Act). Heavy reliance has been placed on judgment of Calcutta High Court titled as Sudarshan Vyapar Pvt. Ltd. and another's case (supra). Further reliance was placed on a judgment rendered by the State Consumer Disputes Redressal Commission, Punjab, at Chandigarh, titled as Raj Kumar Singal Vs. M/s Puma Realtors Private Limited and another, Miscellaneous Application Nos.1226 and 1227 of 2014, in Consumer Complaint No.60 of 2014 and also upon a case titled as M/s S.B.P. and Co. Vs. M/s Patel Engineering Limited and another, AIR 2006 SC 450.

On the other hand, it is stated by Counsel for the complainant that in terms of Section 3 of the 1986 Act, above plea supported by the said judgments, needs to be rejected.

In the case of M/s S.B.P. and Co.'s case (supra), the Hon'ble Supreme Court dealt with altogether a different issue i.e. what is the nature of function of the Chief Justice or his designate, under Section 11 of the 1996 Act. Whether it is purely an administrative function or the Chief Justice or his designate, has the power to adjudicate upon the issues like existence of Arbitration clause in the Agreement/its validity. None of the provisions of 1986 Act were under consideration. The Hon'ble Supreme Court in M/s S.B.P. and Co.'s case (supra) discussed in detail, the provisions of the 1996 Act, and then gave a finding that powers of the Chief Justice of India or the High Court, under Section 11 (6) is not an administrative power but it is a judicial power. When discussing the question, as to who would fall within the definition of Judicial Authority, in terms of Section (8) of the 1996 Act, by making reference to ratio of judgment in the case Fair Air Engineers Pvt. Ltd.  &  anr. Vs. N.K. Modi, III (1996) CPJ 1 (SC) = (1996 (6) SCC 385, it was only said that judicial authority will include the Courts, and also specific Tribunals like Consumer  Fora. Whether the Consumer Fora is bound to refer the matter to the Arbitrator, was not under consideration, in the above case.

The part of ratio of judgment in case Fair Air Engineers Pvt. Ltd.  &  anr.'s case(supra) dealing with above aspect, was not discussed in M/s S.B.P. and Co.s case (supra). In the former judgment besides opining that Consumer  Fora have all the trappings of the judicial authority, further, by making reference to the provisions of Section 34 of the Arbitration Act, 1940 viz a viz Section 3 of 1986 Act, in Fair Air Engineers Pvt. Ltd.  &  anr.'s case (supra),it was observed as under:-

“It would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the CPC. Thereby, as seen, Section 34 of the Act does not confer and automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that Act intends to relieve the consumers of the cumbersome arbitration proceedings   or civil action unless the forums on their own and on their own and on the peculiar facts and circumstances of the particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.”

It was specifically opined that the remedy under Section 3 of the 1986 Act, is in addition to and not in derogation to any other remedy available to an individual.

The above question was again dealt with, by the Hon'ble Supreme Court of India, in National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy  &  anr., I (2012) CPJ 1 (SC).  Taking note of the provisions of 1996 Act and Section 3 of the 1986 Act, it was observed as under:-

“29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2-Judge Bench interpreted that section and held as under:

“the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words ‘in derogation of the provisions of any other law for the time being in force’ would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.

30. In Skypak Couriers Limited v. Tata Chemicals Limited (supra), this Court observed:

“Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.”

31. In Trans Mediterranean Airways v. Universal Exports (supra), it was observed:

“In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy”.

Ratio of the judgments have left nothing to chance. It was mandated that even in the case of special legislation, it is permissible for an individual to avail remedy, under the 1986 Act. The National Commission, in a case titled as DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013 after taking ratio of judgment in the case of M/s S.B.P. and Co.'s case (supra), came to a specific conclusion that remedy provided under Section 3 of the 1986 Act is in addition to and not in derogation of the provisions of any other law, for the time being in force. It was specifically stated that ratio of judgment passed in M/s S.B.P. and Co.'s case (supra), will not debar a Consumer Fora from entertaining the complaint, even in cases where an alternative remedy of Arbitration is provided. Vide that judgment many Revision-Petitions were decided.

Feeling aggrieved against the order dated 13.05.2013, passed by the National Commission, Rosedale Developers Private Limited/Opposite Party challenged above order in the Hon'ble Supreme Court. In the case of Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), the  Hon'ble Supreme Court of India, by making reference to the ratio of  judgment in the case M/s S.B.P. and Co.'s case (supra),  observed that the judgment has no bearing on the issue, as to whether in the face of an Arbitration Clause, Jurisdiction  can be exercised by the Consumer  Fora or not. In that judgment, the Supreme Court had not interpreted the provisions of 1996 Act in the light of the provisions contained in 1986 Act. It was further observed that the observation made in that judgment that Section 8 of the 1996 Act is mandatory, cannot lead to an inference that the Consumer  Fora is bound to make a reference to the Arbitral Tribunal. As such, the facts of Sudarshan Vyapar Pvt. Ltd. and another's and Raj Kumar Singal's cases (supra) relied upon by Counsel for Opposite Parties No.1 and 2, cannot be applied to the facts of the present case.

The position has further been clarified by the National Commission, in the latest Judgment titled as Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited, Consumer Complaint No.427 of 2014 (alongwith other 23 connected cases), decided on 08.06.2015. It was observed as under:-

“It was also contended by the learned counsel for the opposite party that since the agreements between the parties contains arbitration clause, arbitration and not a complaint before this Commission is the appropriate remedy. I, however, find no merit in this contention. As provided in Section 3 of the Consumer Protection Act, the provision of this Act are in addition to the other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching a consumer forum in a case of deficiency in the services rendered to him by the service provider or adoption of unfair trade practices by him. This issue came up for consideration of the Hon’ble Supreme Court in National Seeds Corporation Vs. M. Madhusudhan Reddy  &  anr. (2012) 2 SCC 506  and after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C.P. Act it was held that the plain language of Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.  The Hon’ble Supreme Court has also held that the complaint filed by a consumer before the consumer fora would be maintainable despite their being an arbitration clause in the agreement to refer the dispute to the Arbitrator. In view of the above referred authoritative pronouncement of the Hon’ble Supreme Court which was later followed by a Three Members Bench of this Commission in DLF Ltd. Vs. Mridul Estate Pvt. Ltd., R.P. No.412 of 2011 decided on 13-05-2013, the aforesaid contention advanced by the learned counsel for the opposite party is liable to be rejected.”

Reading of ratio of the judgments referred to above, make it clear that in case of  M/s S.B.P. and Co.'s case (supra), the issue before the Supreme Court of India was altogether different. The provisions of 1986 Act were not under consideration viz. a viz. the provisions of 1996 Act.  As such, the ratio of judgments referred to above, makes it very clear that the judgments in Sudarshan Vyapar Pvt. Ltd. and another's and Raj Kumar Singal's cases (supra), were given by wrongly interpreting the ratio of M/s S.B.P. and Co.'s case (supra).

In view of the above, it is held that the submission of Counsel for Opposite Parties No.1 and 2, that  the complaint filed under Section 17 of the Act, was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Buyer’s Agreement, being devoid of merit, stands rejected.

29.     Not only this, in the latest judgment titled as Mahindra Holidays & Resorts India Ltd. Vs. Adnan Samoon Rassiawala & 6 Ors., First Appeal No. 127 of 2016, decided on 18.03.2016, the National Commission observed as under:-

“The short question for consideration in this Appeal is as to whether the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short “the State Commission”) was justified in dismissing the application filed by the Appellant, the Opposite Party in the Complaint, under Section-8 of the Arbitration and Conciliation Act, 1996, seeking stay of the proceedings in the Complaint and for referring the matter to arbitration, in view of the fact that there was an Arbitration Agreement between the parties.

Though Mr. Pattjoshi, learned Senior Counsel, has made valiant attempt to convince us that in the light of the decision of the Hon’ble Delhi High Court in HDFC Bank Ltd. v. Satpal Singh Bakshi, 2013 (134) DRJ 566 (FB), the parties were bound by the Arbitration Agreement and in view of the clear provision of Section-8 of the said Act, the dispute, subject matter of the Complaint, ought to have been referred to arbitration, yet we are unable to persuade ourselves to agree with the learned Senior Counsel.  The issue sought to be raised is no more res integra as stands concluded by a number of authoritative pronouncements by the Hon’ble Supreme Court (see Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (dead) through LRs & Ors., (2004) 1 SCC 305; Skypak Couriers Ltd. v. Tata Chemicals Ltd., (2000) 5 SCC 294; and National Seeds Corporation Ltd. v. Madusudan Reddy, (2012) 2 SCC 506).

In light of the said decisions of the Hon’ble Supreme Court, directly on the point, decision of the High Court cannot be relied upon, particularly when none of the afore-noted decisions have been noticed in the High Court’s decision, on which reliance has been placed by the learned Senior Counsel.

We do not find any illegality in the impugned order, warranting our interference.

Consequently, the Appeal fails and is dismissed in limine”.

30.    Now it is to be seen, whether, after making amendment in Section 8 of the principal Act, any additional rights have accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling disputes through an Arbitrator, this Commission is not empowered to entertain a consumer complaint.

            As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act.

31.  Now, we will have to see what difference has been made by effecting amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to Consumer Foras  to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist for arbitrator, notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said. Otherwise also, as has been stated in the earlier part of this order, where there is any ambiguity in understanding meaning of provision of law, or where two interpretations are possible, one beneficial to the consumer would be accepted.

32.    We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/ multinational companies/traders. As in the present cases, the consumers/ complainants have spent their entire life savings to get a plot, so that they can construct a house thereon. Their hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  the complaint is supposed to be decided within three months, from the date of service of the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act,  the consumer will be forced to (as in the present case) pay huge expenses. As in the present case, the complainant is claiming refund of Rs.65,56,513/- alongwith interest, compensation and litigation costs, aggregate value whereof, if added may be near about Rs.1 crore. In that event, the complainant will be forced to pay an amount of Rs.1,68,750/-  towards her share of Arbitrator fees. Not only as above, it is admissible to an Arbitrator, to decide the dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of General Assembly Resolution No.39/248 and the provisions of 1986 Act. In view of above, the ground raised by Counsel for opposite party no.1, stands rejected.”

18.       Similar view was reiterated by this Commission, in Praveen Kumar Arora and another Vs. Emaar MGF Land Limited, consumer complaint No.198 of 2015, decided on 04.04.2016, by further holding as under:-

“20. The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. In the present case, the complainants have spent their entire life earnings to purchase a unit, in a housing project, launched by the opposite party. It was their hope that they will live therein. However, their hopes were shattered, when despite making payment of entire amount towards price, they failed to get possession of a unit, in a developed project. As per established ratio of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and also in the judgment of United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), it was said that the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

21. In view of the above, the argument raised by Counsel for the opposite party that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected”.

19.           Accordingly, in the face of ratio of judgments, referred to above, the arguments raised by Counsel for opposite parties No.1 to 3, stands rejected.    
20.       The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, consumer complaint could be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident, that out of the deposited amount, an amount of Rs.27,18,900/-, in respect of the unit, in question, was received by Marketing Office of opposite parties no.1 and 2, at Chandigarh, i.e. Unitech Ltd., SCO 189-90-91, Sector 17-C, Chandigarh, vide different cheques, as is evident from Annexure C-5 (colly.) (at pages 22 to 29). Not only this, it is further evident that the document Annexure C-4 (Customer Ledger), was also issued to the complainant, by Chandigarh Office of opposite parties no.1 and 2,  i.e. Unitech Ltd., SCO 189-90-91, Sector 17-C, Chandigarh. Since, as per the documents, referred to above, a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by opposite parties no.1 to 3, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 
21.       Another objection raised by Counsel for opposite parties no.1 to 3, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainant has sought possession of the unit, alongwith delayed compensation or in the alternative refund of the amount of Rs.36,99,822/-, paid by him, towards price of the same, alongwith interest @18% compounded, from the respective dates of deposits, till realization; lumpsum compensation to the tune of Rs.22 lacs, for mental agony;  physical harassment; damages; deficiency in providing service and unfair trade practice; and cost of litigation, to the tune of Rs.55,000/-, aggregate value whereof [excluding the interest claimed] came to be around Rs.59,54,822/- and, as such, fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint, for the reasons given hereinafter.
22.       Now, the question, that arises for consideration, is, as to whether, interest @18% compounded, claimed by the complainant, on the amount of Rs.36,99,822/- aforesaid, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission.  In Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/- it (amount) will exceed Rs.20 lacs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

“Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs.18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.

Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs”.

23.       Not only this, a similar question regarding pecuniary Jurisdiction, fell before this Commission, in a case titled as Karnail Singh  and another Vs. M/s Emaar MGF Land Limited, Consumer Complaint No.05 of 2014 decided on 09.04.2014. In that case also, an objection was raised by the Opposite Parties (Emaar MGF Land Limited) that since the complainants,  had sought refund of amount of Rs.62,60,750/- alongwith interest @24% P.A., from the respective dates of deposits, alongwith compensation and litigation costs, as such, if the reliefs are clubbed together alongwith interest claimed, the aggregate value therefore fell above Rs.1 crore, and as such, this Commission had no pecuniary Jurisdiction to entertain the complaint. In that case, while rejecting said objection of the Opposite Parties, this Commission, by placing reliance on Shahbad Cooperative Sugar Mills Ltd.' case (supra),  came to the conclusion that it had pecuniary Jurisdiction to entertain the complaint, and ordered refund of the amount alongwith interest, compensation and litigation costs, vide order dated 09.04.2014. Appeal filed by the Opposite Parties (Emaar MGF Land Limited) against the order dated 09.04.2014, before the National Commission, was dismissed with punitive damages of Rs.5 lacs. Still feeling aggrieved, the Opposite Parties, filed Special Leave to Appeal (C) No.29392 of 2014, which was also dismissed by the Hon'ble Supreme Court of India, in limine, vide order dated 14.11.2014. In this manner, the findings given by this Commission in Karnail Singh and another's case (supra), by placing reliance on Shahbad Cooperative Sugar Mills Ltd.'s case (supra), to the effect that it has pecuniary Jurisdiction to entertain and decide the complaint, in the manner, referred to above, were upheld by the National Commission, and also the Hon'ble Supreme Court of India. Recently, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided On 08 Mar 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the submission of Counsel for opposite parties no.1 to 3, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
24.       To defeat claim of the complainant, another objection was raised by Counsel for opposite parties no.1 to 3, that since the complainant has purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, as such, he would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not.

            It may be stated here that there is nothing, on the record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. On the other hand, it has been clearly averred by the complainant, in para no.3 of his complaint, that he was in urgent requirement of a residential flat, in a developed area, as a result whereof, he intended to purchase the same, in the project of opposite parties no.1 and 2.  In the absence of any cogent evidence, in support of the objection raised by opposite parties no.1 to 3  mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no.1 to 3, in their written reply, therefore, being devoid of merit, is rejected.  

25.        The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainant. According to Article 4.a.(i) of the Agreement, opposite parties no.1 and 2, were to hand over possession of the unit, in question, to the complainant, within a period of 36 months, from the date of execution of the same (Agreement) i.e. by 16.03.2014. Admittedly, possession of the unit, in question, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed. Even, in the written version, opposite parties no.1 to 3, frankly admitted, that possession of the unit, in question, could not be offered to the complainant, as they failed to complete the construction and development work, on account of extreme financial hardship, due to recession in the market/global meltdown, and also on account of non-provision of electricity in the said project, by the Punjab State Power Corporation Limited (PSPCL). Admission made by the opposite parties no.1 to 3, itself makes it clear that they had not obtained necessary approvals/ sanctions from the PSPCL, as a result whereof, they were not provided with electricity, for the project in question. Secondly, when opposite parties no.1 and 2, had already received more than 95% of the sale consideration of the unit, in question, from the allottees, including the complainant, then it does not lie in their mouth, that they faced extreme financial hardship, due to recession in the market, as far as the project, in question, is concerned. Admittedly, more than 95% of the sale consideration of the unit, in question, had already been paid, by the time of filing the complaint, but possession of the same, was not delivered in favour of the complainant. Now, even as on today, on account of pending construction and development works, as admitted by opposite parties no.1 to 3, as also for want of various permissions, firm date of handing over possession of the unit, in question, could not be given to the complainant.  Even otherwise, the said difficulty/ ground i.e. recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the construction of unit(s).  A change in economic or market circumstances affecting the profitability of a contract or the circumstance, is not regarded as a force majeure condition. Neither any new legislation was enacted nor an existing rule, regulation or order was amended, stopping suspending or delaying the construction of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. There is no allegation of any lock-out or strike by the labour, at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of opposite parties no.1 and 2 or the contractors engaged by it, at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project, within the time stipulated in the Agreement. A similar question fell for determination before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in  Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  decided on 14 Aug 2015. The National Commission, in that case, while rejecting the plea of the builder, held as under:-

“Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.

Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word ‘slow down’ having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.”.

26.       The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. By making a misleading statement, that  the possession of unit, in question, would be delivered within a period of 36 months, from the date of execution of the Agreement,  and by not abiding by the commitments made, opposite parties no.1 and 2 were not only deficient, in rendering service, but also indulged into unfair trade practice.
27.       The next question, that falls for consideration, is, as to whether, as in the instant case, the complainant had sought refund of the amount deposited, the forfeiture Clause will attract, as envisaged in the Agreement. The Agreement was executed between the parties, on 17.03.2011. As stated above, according  to Article 4.a (i) of the Agreement,  opposite parties no.1 and 2, were to hand over physical possession of the unit, in favour of the complainant, within a period of 36 months, and not later than that, from the date of execution of the same (Plot Buyer's Agreement), after constructing the flat, complete in all respects. Admittedly, possession of the unit, was not even offered to the complainant, by 16.03.2014 i.e. by the stipulated date, what to speak of delivery thereof, as still the construction/development work was going on and opposite parties no.1 and 2, were still trying to provide the basic amenities at the site, as has been admitted by them. Had the construction of unit, in question, been complete and had the amenities, complete in all respects, been provided, in respect of the area, where the unit of the complainant was situated, by the stipulated date and had opposite parties no.1 and 2, offered possession to the complainant, but, on the other hand, he (complainant) had sought refund of the amount deposited, the matter would have been different. In that event, it would have been held that since the complainant rescinded the contract, as such, forfeiture clause contained in the Agreement would be applicable. However, in the present case, possession of the unit, in question, was not even offered to the complainant, by the stipulated date, or even till date, it was justifiable for the complainant to seek refund of the amount deposited without application of forfeiture Clause. It was so said by the National Consumer Disputes Redressal Commission, New Delhi in Emaar   MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). In the above case, possession   was   not   delivered   in   time. Complaint was filed for refund of amount paid. The State Commission partly allowed it. The builder was allowed to forfeit 10% of the deposited amount, on the ground that the complainant himself rescinded the contract by asking refund of the amount, as possession of the unit had already been offered to him. The remaining amount was allowed to be returned with interest. The complainant in that case was also awarded litigation cost etc. The builder namely Emaar MGF Land Limited went in appeal, which was dismissed, wherein it was specifically observed by the National Commission, that when the promoter/builder has violated material condition in not handing over possession, in time, it is not obligatory for the purchaser to accept possession after that date. The principle of law laid in the aforesaid case, is fully applicable to the instant case. On account of that, the complainant is entitled to get refund of the entire amount deposited by him, without application of forfeiture clause. The submission of Counsel for opposite parties no.1 to 3, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

            The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. Opposite parties no.1 and 2, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is, thus, entitled to get refund of amount deposited by him. In view of above facts of the case, opposite parties no.1 and 2, are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

28.       It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.36,99,822/- i.e. more than about 95% of the sale consideration, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by opposite parties no.1 and 2, for their own benefit. There is no dispute that for making delayed payments, opposite parties no.1 and 2 were charging heavy rate of interest (compounded quarterly @18%) as per Article 2.c. of the Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.36,99,822/- alongwith interest @15% compounded quarterly, from the respective dates of deposits (less than the rate of interest charged by the opposite party, in case of delayed payment i.e. 18% p.a. as per Article 2.c. of the Agreement), till realization.
29.        No other point, was urged, by Counsel for the parties, concerned.  
30.       For the reasons recorded above, this complaint is partly accepted, with costs. Opposite parties no.1 and 2/builder(s), are jointly and severally directed as under:-

 

1. To refund the amount of   Rs.36,99,822/- to  the complainant, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs. 50,000/-, to the complainant.
4. Complaint against opposite parties no.3 and 4 is dismissed with no order as to costs, as no deficiency in providing service or unfair trade practice, has been proved on their part.

 

Consumer Complaint No.294 of 2015 titled as Kamaldeep Kaur and another Vs. Unitech Limited, The opposite party is directed as under:-

 

1. To  refund the amount of   Rs.83,81,548/- to  the complainants,  alongwith interest @15% compounded quarterly, from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants.

 

31.       The payment of awarded amounts (in both the complaints) mentioned at sr.nos.(i) to (iii), shall be made, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
32.       However, it is made clear that in a case, where the complainant(s) has/have availed loan facility from any financial institution(s), it shall have the first charge of the amount payable, to the extent, the same is due to be paid by him/her (complainant(s).
33.       Certified Copies of this order be sent to the parties, free of charge.
34.       The file be consigned to Record Room, after completion.

Pronounced.

08.04.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Rg.