Chandigarh

StateCommission

CC/284/2016

Manmohan Sandhu - Complainant(s)

Versus

Unitech Ltd. - Opp.Party(s)

Tapas Sharma & Mandhir Singh Virk,Adv.

07 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	284 of 2016
Date of Institution	:	22.06.2016
Date of Decision	:	07.10.2016

 

Manmohan Sandhu son of Sh.Amrik Singh, permanent resident of Village and Post Office-Moriwala, District Sirsa, Haryana, through his General Power of Attorney Holder and also his father Sh.Amrik Singh.

…… Complainant

V e r s u s

1. Unitech Limited, Real Estate Division, Marketing Office, SCO 189-190-191, Sector 17C, Chandigarh, through its Managing Director/Authorized Person.
2. Unitech Limited, Real Estate Division, Registered Office at 6, Community Centre, Saket, New Delhi-110017, through its Managing Director/Authorized Person.
3. Alice Developers Private Limited, Registered Office at Basement, 6, Community Centre, Saket, New Delhi, through its Managing Director/Authorized Person.

…..Opposite parties

Argued by:-     Sh.Tapas Sharma, Advocate for the         complainant.

Sh.Ruhani Chadha, Advocate for opposite parties no.1 and 2.

Opposite party no.3 exparte.

 

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Complaint case No.	:	426 of 2016
Date of Institution	:	04.08.2016
Date of Decision	:	07.10.2016

 

1. Harbhajan Singh Ramdasia aged 77 years (Senior Citizen) son of Late Shri Darbara Singh, resident of House No.1071, Sector 37-B, U.T., Chandigarh.
2. Mrs. Vidyavati aged 74 years (Senior Citizen), Harbhajan Singh Ramdasia, resident of House No.1071, Sector 37-B, U.T., Chandigarh.

…… Complainant

V e r s u s

1. M/s Unitech Limited, having its Registered Office at 6, Community Centre, Saket, New Delhi-110017, through its Managing Director.
2. M/s Unitech Limited, Regional Office, SCO 189-190-191, Sector 17C, Chandigarh, through its Director Marketing.
3. Alice Developers Private Limited, through its Authorized Signatory, Registered Office at Basement, 6, Community Centre, Saket, New Delhi-110017.

…..Opposite parties

Argued by:-     Sh.Inderjit Kaushal, Advocate for the      complainants.

Sh.R.K. Dogra, Advocate for opposite parties no.1 and 2.

Opposite party no.3 exparte.

 

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Complaint case No.	:	427 of 2016
Date of Institution	:	04.08.2016
Date of Decision	:	07.10.2016

 

1. Darshan Singh aged 74 years (Senior Citizen) son of Late Shri Darbara Singh, resident of House No.1841, Sector 49-B, Nirwana Society, U.T., Chandigarh.
2. Mrs. Mohinder Kaur aged 68 years (Senior Citizen) wife of Shri Darshan Singh, resident of House No.1841, Sector 49-B, Nirwana Society, U.T., Chandigarh.

…… Complainant

V e r s u s

1. M/s Unitech Limited, having its Registered Office at 6, Community Centre, Saket, New Delhi-110017, through its Managing Director.
2. M/s Unitech Limited, Regional Office, SCO 189-190-191, Sector 17C, Chandigarh, through its Director Marketing.
3. Alice Developers Private Limited, through its Authorized Signatory, Registered Office at Basement, 6, Community Centre, Saket, New Delhi-110017.

…..Opposite parties

Argued by:-     Sh.Inderjit Kaushal, Advocate for the      complainants.

Sh.R.K. Dogra, Advocate for opposite parties no.1 and 2.

Opposite party no.3 exparte.

 

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 the aforesaid three consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. At the time of arguments, on 04.10.2016, it was agreed by Counsel for the parties, that, in view of above, these three complaints can be disposed of, by passing a consolidated order.

2.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.284 of 2016 titled as Manmohan Sandhu Vs. Unitech Limited and ors. It is stated by the complainant through his Attorney that he moved an application on 30.09.2011, to opposite party no.1, to purchase a residential apartment, bearing no.604, Level-6, Tower no.3, having super area of 1485 square feet, in a project launched by them, under the name and style ‘Gardens’, situated in Mega Township, Uniworld City, Sector 97, Mohali, Punjab. On that date, the complainant had paid an amount of Rs.3,92,250/- through cheque dated 27.09.2011 against receipt. Allotment of the unit was confirmed vide letter dated 19.10.2011, issued by opposite parties no.1 and 2. Buyer’s Agreement Annexure C-6 (in short the Agreement) was executed between the parties on 21.12.2011, between opposite parties no.1 to 3 and the complainant, wherein, opposite party no.3 was shown as developer of the project. Total sale consideration of the unit was fixed at Rs.41,15,700/-. The complainant opted for construction linked payment plan. Article 4.a.(i) of the Agreement reads thus:-

“(i) That Subject to the Apartment Allottee(s) complying with various terms and conditions of this agreement and other requirements as indicated by the Developer, the possession of the Apartment is proposed to be offered to the Apartment Allottee(s) within 36 months of signing of these presents, subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable by the Apartment Allottee(s)  under this Agreement have been paid within the stipulated period. It is, however, understood between the Parties that various Apartments shall be ready and shall be completed in phases and handed over to the Apartment Allottee(s) of the completed Tower/Block accordingly.”

3.         Before delivery of possession, as per Article 4.b., it was incumbent for opposite parties no.1 to 3, to give notice to the complainant, in case of delay in handing over possession of the unit, beyond the period of 36 months, subject to force majeure circumstances. It was further provided in the Agreement that penalty @Rs.5/- per square feet, per month of the super area, for the period of delay shall be paid by the  opposite parties, to the complainant.
4.         As per the Agreement, end date to hand over possession  of the unit was 20.12.2014.  To make payment towards price of the unit, the complainant raised loan from HDFC Limited, vide Tripartite Agreement dated 24.12.2011 Annexure C-7. Opposite Parties no.2 and 3 alongwith the complainant were party to that Tripartite Agreement. Thereafter, further payment was made by the complainant against receipts Annexures C-8 to C-28, through loan account and also through personal sources.  The complainant, in all, has paid an amount of Rs.39,06,459/-, which comes to about 94% of the total sale price of the unit. Many times, request was made to the opposite parties to deliver possession of the unit, as promised. When nothing materialized, the complainant wrote letters with a request to do so. Copies of letters have been placed on record as Annexures C-30 and C-31. By stating that on account of non-delivery of possession of the unit, in question, family members of the complainant, per force, are living  in their Village in Sirsa and are thus deprived of luxury of living a quality life near beautiful City, Chandigarh.

                By stating that he has lost faith in the credibility of the opposite parties, prayer has been made to refund the amount paid, with interest, compensation for mental agony and physical harassment alongwith litigation expenses.

5.         Upon notice, reply was filed by opposite parties no.1 and 2, raising various preliminary objections questioning territorial jurisdiction of this Commission. It was pleaded that as per Article 12.b of the Agreement, only the Courts at Mohali shall have Jurisdiction to entertain and adjudicate the complaint. It is asserted that the unit, in question, was purchased for future gain, as such, the complainant being investor, would not fall within definition of a consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.  It was further pleaded 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 averred that the complaint is bad for non-joinder of parties.
6.         On merits, it was admitted that the complainant had purchased the residential unit, in question, in the manner, referred to above. Payments made by the complainant are also not disputed. Fact qua price of the unit, as mentioned in the complaint was also not disputed. Execution of Buyer’s Agreement and Tripartite Agreement is admitted. It was also admitted that payment was to be made as per construction linked plan. It is stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was also not disputed that as per Article 4.a.(i) of the Agreement, possession of the fully developed unit, was to be delivered to the  complainant within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions. It was further stated that it was the opposite party no.3, which was to construct the units and deliver possession of the same, as such, no liability can be fastened  upon opposite parties no.1 and 2, as they were only the confirming parties.  It was stated that construction is in full swing and possession of the unit will be delivered shortly.
7.         It was further stated that the developer was entitled to reasonable extension of time for delivery of possession of the unit, on account of force majeure circumstances or the reasons beyond its control. It was also stated that opposite parties no.1 and 2 have no liability to make refund of the amount deposited. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
8.         Despite deemed service, none put in appearance, on behalf of opposite party no.3, as a result whereof, it was proceeded against exparte, vide order dated 02.08.2016.
9.         In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those, contained in written version of opposite parties no.1 and 2
10.         The complainant and opposite parties no.1 and 2, led evidence in support of their case. 
11.         Counsel for the parties concerned raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
12.         Contention of Counsel for opposite parties no.1 and 2 qua lack of territorial jurisdiction of this Commission to entertain and decide the complaint needs rejection. In the Buyer’s Agreement, it was specifically stated that the Marketing Office of opposite party no.1 is situated at SCO 189-90-91, Sector 17-C, Chandigarh. A similar plea raised by the opposite parties qua lack of territorial jurisdiction of this Commission to entertain and decide the complaint failed against them, was earlier rejected by this Commission, vide judgment titled as Mr.Om Parkash Dua and ors. Vs. Unitech Limited and another, decided on 22.08.2016. In that case, it was noted that the Marketing Office of opposite parties no.1 and 2 is situated in Chandigarh and the said office was responsible for development and marketing of the project, in question, as such this Commission has got territorial jurisdiction to entertain the complaint. In that case, it was observed by this Commission as under:-

“Contention of Counsel for opposite party no.1 that this Commission has got no territorial Jurisdiction, to entertain and decide the complaint deserves to be rejected. According to Section 17 of the Act, a consumer complaint could be filed by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to the complainants. It is apparent on record that the Marketing Office of opposite party no.1 is situated at SCO No.189-90-91, Sector 17-C, Chandigarh. In the Buyer’s Agreement dated 28.10.2009, description of opposite party no.1 is given as under:-

“UNITECH LIMITED, a Public Limited Company duly incorporated under the Companies Act 1956, having its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh and its Registered Office at 6, Community Centre, Saket, New Delhi 110017 (hereinafter referred to as Unitech/Confirming Party) which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to include its executors, administrators, successors and assigns) acting through its authorized signatory”

It is clearly mentioned that the Marketing Office of opposite party no.1 is situated at SCO 189-90-91, Sector 17-C, Chandigarh. It has been earlier noticed by this Commission, in the case of Sanjeev Dhir  Vs.  Unitech Limited,  Complaint case No. 177 of 2016, decided on 01.08.2016, that it was the Marketing Office of opposite party no.1 situated at Chandigarh, which was responsible for development and marketing of the project, in question. Taking note of information placed on record, in the above case, it was observed as under:-

“It is clearly mentioned that the Company has its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh. Registered Office is situated at 6, Community Centre, Saket, New Delhi.  Be that as it may, as per documents placed on record by the opposite party, alongwith written statement, it becomes apparent that Marketing Office at Chandigarh/opposite party was responsible for development and marketing of the project, in question. Entire correspondence with the Authorities qua development of the project and getting necessary permissions were being taken up by the Officers of the opposite party,  posted at Chandigarh. Above fact makes it clear that the Branch Office at Chandigarh was substantially taking up the activities qua the project, in question. Copy of customer ledger account Annexure C-25 in respect of the unit, in question, was also issued by the opposite party at Chandigarh. In para no.1 of the preliminary submission, it is also mentioned that Marketing Office of the Company is situated at Chandigarh. Besides all above, it has been candidly admitted by the opposite party, in para no.24 of its reply on merits, that that all the payments were received from the complainant by Chandigarh Office of the Company. The Hon’ble Supreme Court of India in State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839 held that the Court(s), in whose Jurisdiction, products/goods are marketed, will have the territorial Jurisdiction to entertain and decide a complaint. The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. In view of fact of Marketing Office of  the opposite party at Chandigarh and also 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 the  opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.”

 

Not only as above, payment of Rs.1,36,695/- vide cheque dated 21.07.2012, was received by the Regional Office of opposite party no.1, at Chandigarh. Photocopy of the cheque with receipt given is available at page 36 of the paper book. Facts narrated above, clearly goes to show that a part of action has accrued to the complainants at Chandigarh i.e. within the territory of this Commission, as such, this Commission has got territorial jurisdiction to entertain and decide the complaint.”

 

13.         Similar view was reiterated by this Commission in a case titled as Amit Kohli and another Vs. Unitech Limited and Ors., complaint case no.210 of 2016, decided on 01.09.2016.
14.         Not only as above, it is proved on record that huge amount was received through cheques and otherwise, by Marketing Office of opposite parties no.1 and 2, towards price of the unit, at Chandigarh.  Receipt Annexure C-3  reflects above said position. It is also on record that loan was raised by the complainant to make payment towards price of the unit. Tripartite Agreement was entered into between opposite parties no.1 to 3, complainant and HDFC Limited and, as such, the said Financial Institution at Chandigarh, also made the payment towards price of the unit.  Even the application form Annexure C-2, in respect of booking of the said unit, was moved to and accepted by, opposite party no.1 at Chandigarh. In view of above, contention raised by Counsel for opposite parties no.1 and 2, being devoid of merit, is rejected.
15.         No doubt, in the written version, an objection was also taken by opposite parties no.1 and 2, that as per Article 12.b of the Agreement, the Courts at Mohali, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh 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 circumstances of the case.

                In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum,  in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts at Mohali, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainant, to file the complaint. The submission of Counsel for opposite parties no.1  and 2, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

16.         It is admitted on record that Buyer’s Agreement was signed between the parties on 21.12.2011. Constructed unit was sold in favour of the complainant, for an amount of Rs.41,15,700/-As per Article 4.a.(i) of the Agreement, possession of the fully developed unit was to be delivered to the  complainant within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions. The complainant had paid an amount of Rs.39,06,459/-. Rest of the amount was to be paid on getting final notice of possession of the unit, which was never issued by opposite parties no.1 to 3, to the complainant within the stipulated time or even till date.
17.         Contention of Counsel for the complainant that construction at the spot is not complete needs acceptance. Possession of the unit has not even been offered to the complainant by the opposite parties, by the stipulated date. It is not a case of the opposite parties that possession of the unit was ready to be delivered, but the complainant has refused to come forward to accept the same (possession). Rather, in the written statement,  it is admitted by opposite parties no.1 and 2 that there is a delay in completing construction of the units. At the time of arguments, Counsel for opposite parties no.1 and 2 vehemently contended that possession of the unit will be offered to the complainant within a maximum period of three months. However, he has failed to substantiate his plea raised. Similar contention was taken by opposite parties no.1 and 2, in Amit Kohli and another's case (supra). However, it was rejected by this Commission noting that completion of the project will take long time.

                Not only this, in the present case, there is nothing on record to show that the opposite parties have even applied for getting occupation and completion/partial completion certificates, in respect of the project, in question. In this view of the matter, it is held that the opposite parties by making false promises to the purchasers including the complainant that possession of the units will be delivered within 36 months from the date of execution of the Agreement, but by not abiding the same, were not only deficient in rendering service but were also guilty of adopting unfair trade practice. 

18.         To defeat claim of the  complainants, another objection was raised by Counsel for opposite parties no.1 and 2, that the complainant is a speculator, as he 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, therefore, he would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. It is specifically stated that the complainant is residing abroad and this complaint has been filed through his Attorney. There is nothing on record to show that the complainant wanted to live in the unit, in dispute. By stating that the unit was purchased for future gains, prayer was made to dismiss the complaint. Reliance has also been placed by Counsel for opposite parties no.1 and 2 on the judgments of the National Commission, titled as Ved Kumari and anr. Vs. Omaxe Buildhome Pvt. Ltd. and anr., 2014 (2) C.P.J.146 and Dr.Pramod Kumar Arora and anr. Vs. DLF Homes Panchkula Pvt. Ltd., 2015 (4) CLT 482, to support the above contention.  We have perused the judgments aforesaid and are not concurring with the plea raised. In the case of Ved Kumari and anr. (supra), it has come on record that large number of properties were purchased by the  complainant/his family members. Taking note of same, it was stated in that case, that investment was made for future gains. Same is the situation in the case of Dr.Pramod Kumar Arora an anr. (supra). In that case also, it has come on record that the complainants had invested around Rs.12 crores in the project of the builder namely DLF Homes Panchkula Pvt. Limited. The complainants in that case failed to show that they need the properties in question, for their residential use. In the present case, it has been specifically stated by the complainant in his complaint as also in the rejoinder that the unit, in question, was purchased by him for residential purpose, i.e. he wanted to shift his family members from Village Sirsa, to enjoy quality life near beautiful City, Chandigarh.

                Even otherwise, there is nothing, on record to show, that the complainant is the property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by opposite parties no.1 and 2, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, 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,  2016 (2) CPJ 316. Not only as above, recently under similar circumstances, in  a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no.l and 2, in its written reply, therefore, being devoid of merit, is rejected.  

19.         Another objection was raised by Counsel for opposite parties no.1 and 2, that the dispute being related to contractual matter, the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainants hired the services of opposite parties no.1 to 3, for purchasing the unit, in the manner, referred to above. According to Article 4.a.(i) of the  Agreement, physical possession of the unit, was to be delivered by opposite parties no.1 to 3, within a period of 36 months, from the date of execution of the same (Agreement) i.e. latest by 20.12.2014 alongwith all basic amenities as mentioned in Article 2.a.(ii) of the Agreement. Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by him, as he falls within the definition of consumer. In this view of the matter, the objection of opposite parties no. 1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.

20.         The next 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.

                To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), 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.”

                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which 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.”

21.         Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.
22.         In the year 2015, many amendments were effected in the provisions of 1996 Act. 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.”

23.         Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction 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/Law.
24.         Now, we will have to see what difference has been made by the 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 the 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 to settle the disputes 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.
25.         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 case, the complainant has spent his life savings to get a unit, for their residential purpose. His 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.2000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to 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 (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a 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 the provisions of 1986 Act.
26.         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. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the unit, in question, in the said project, launched by opposite parties no.1 to 3. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the constructed unit, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and 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), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to 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.
27.         Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

                In view of the above, objection raised by Counsel for opposite parties no.1 and 2, 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.

28.          Above facts, clearly goes to show that opposite parties no.1 to 3 are guilty of deficiency in providing service to the complainant. 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 to 3 are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.
29.         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.39,06,459/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by opposite parties no.1 to 3, for their own benefit. There is no dispute that for making delayed payments, opposite parties no.1 to 3 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.39,06,459/- alongwith interest @15% compounded quarterly, from the respective dates of deposits (less than the rate of interest charged by the opposite parties, in case of delayed payment i.e. 18% compounded quarterly, as per Article 2.c. of the Agreement), till realization.  
30.         As far as the liability of opposite parties no.1 and 2, is concerned, it may be stated here that once it has been proved on record that opposite parties no.1 and 2 were necessary parties to the Agreement; they also marketed the project, in question; and had also received amount from the complainant, towards the said unit, through the cheques/receipts, referred to above,  as such, they are equally liable alongwith opposite party no.3, to refund the amount paid by him (complainant). The complaint, in no way, can be dismissed on the pretext of non-joinder or misjoinder of parties. The objection raised by Counsel for opposite parties no.1 and 2, in this regard, being devoid of merit, stands rejected.
31.         No other point, was urged, by Counsel for the complainant and opposite parties no.1 and 2.
32.         For the reasons recorded above, all the three complaints are partly accepted, with costs, in the following manner:-

Consumer complaint no.284 of 2016, Manmohan Sandhu Vs. Unitech Limited and ors. The opposite parties (Opposite parties no.1 to 3) are jointly and severally directed as under:-

1.       To refund the amount Rs.39,06,459/- to  the  complainant, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2.       To pay compensation, in the sum of Rs.2 (two) 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.35,000/- to the  complainant.
4.       The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months 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.

 

Consumer complaint no.426 of 2016, Harbhajan Singh Ramdasia and another Vs. M/s Unitech Limited and ors. The opposite parties (Opposite parties no.1 to 3) are jointly and severally directed as under:-

1.       To refund the amount Rs.29,24,347/- to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2.       To pay compensation, in the sum of Rs.2 (two) 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. 35,000 /- to the  complainants.
4.       The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months 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.

 

Consumer complaint no.427 of 2016, Darshan Singh and another Vs. M/s Unitech Limited and ors. The opposite parties (Opposite parties no.1 to 3) are jointly and severally directed as under:-

 

1.       To refund the amount Rs.29,43,614/- to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2.       To pay compensation, in the sum of Rs.2 (two) 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. 35,000/- to the  complainants.
4.       The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months 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.

33.         However, it is made clear that, if the complainants, in above cases, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
34.         Certified copy of this order be placed on the complaint files bearing Nos.426  of 2016 and  427 of 2016 also.
35.         Certified Copies of this order be sent to the parties, free of charge.
36.         The file be consigned to Record Room, after completion.

Pronounced.

07.10.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.

 

 

 

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	426 of 2016
Date of Institution	:	04.08.2016
Date of Decision	:	07.10.2016

 

1. Harbhajan Singh Ramdasia aged 77 years (Senior Citizen) son of Late Shri Darbara Singh, resident of House No.1071, Sector 37-B, U.T., Chandigarh.
2. Mrs. Vidyavati aged 74 years (Senior Citizen), Harbhajan Singh Ramdasia, resident of House No.1071, Sector 37-B, U.T., Chandigarh.

…… Complainant

V e r s u s

1. M/s Unitech Limited, having its Registered Office at 6, Community Centre, Saket, New Delhi-110017, through its Managing Director.
2. M/s Unitech Limited, Regional Office, SCO 189-190-191, Sector 17C, Chandigarh, through its Director Marketing.
3. Alice Developers Private Limited, through its Authorized Signatory, Registered Office at Basement, 6, Community Centre, Saket, New Delhi-110017.

…..Opposite parties

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.Inderjit Kaushal, Advocate for the      complainants.

Sh.R.K. Dogra, Advocate for opposite parties no.1 and 2.

Opposite party no.3 exparte.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                   Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.284 of 2016 titled as Manmohan Sandhu Vs. Unitech Limited and ors., this complaint has been party accepted with costs.

2.           Certified copy of the order passed in consumer complaint bearing No.284 of 2016, shall also be placed on this file.
3.           Certified copies of this order, alongwith the main order passed in consumer complaint bearing No.284 of 2016, 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.	:	427 of 2016
Date of Institution	:	04.08.2016
Date of Decision	:	07.10.2016

 

1. Darshan Singh aged 74 years (Senior Citizen) son of Late Shri Darbara Singh, resident of House No.1841, Sector 49-B, Nirwana Society, U.T., Chandigarh.
2. Mrs. Mohinder Kaur aged 68 years (Senior Citizen) wife of Shri Darshan Singh, resident of House No.1841, Sector 49-B, Nirwana Society, U.T., Chandigarh.

…… Complainant

V e r s u s

1. M/s Unitech Limited, having its Registered Office at 6, Community Centre, Saket, New Delhi-110017, through its Managing Director.
2. M/s Unitech Limited, Regional Office, SCO 189-190-191, Sector 17C, Chandigarh, through its Director Marketing.
3. Alice Developers Private Limited, through its Authorized Signatory, Registered Office at Basement, 6, Community Centre, Saket, New Delhi-110017.

…..Opposite parties

 

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.Inderjit Kaushal, Advocate for the complainants.

Sh.R.K. Dogra, Advocate for opposite parties no.1 and 2.

Opposite party no.3 exparte.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                    Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.284 of 2016 titled as Manmohan Sandhu Vs. Unitech Limited and ors., this complaint has been party accepted with costs.

2.           Certified copy of the order passed in consumer complaint bearing No.284 of 2016, shall also be placed on this file.
3.           Certified copies of this order, alongwith the main order passed in consumer complaint bearing No.284 of 2016, 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.