Chandigarh

StateCommission

CC/271/2017

Sanjay Kakar - Complainant(s)

Versus

Unitech Ltd. - Opp.Party(s)

Satyaveer Singh

17 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	271 of 2017
Date of Institution	:	30.03.2017
Date of Decision	:	17-Aug-17

 

Sanjay Kakar son of Sh.Ramesh Kumar Kakar, Resident of House No.1614, Sector 44-B, New Delhi-110014.

…… Complainant

V e r s u s

1. Unitech Limited, Registered Office:6, Community Centre, Saket, New Delhi -110017, through its Chairman.

Chandigarh Office:-

Unitech Limited, SCO No.189-90-91, Sector 17-C, Chandigarh-160017, India.

2. Mr.Ramesh Chandra, Chairman of Unitech Limited, Registered Office:6, Community Centre, Saket, New Delhi -110017.
3. Mr.Ajay Chandra, Managing Director of Unitech Limited, Registered Office:6, Community Centre, Saket, New Delhi -110017.
4. Mr.Sanjay Chandra, Managing Director of Unitech Limited, Registered Office:6, Community Centre, Saket, New Delhi -110017.
5. Ms.Minoti Bahri, Director of Unitech Limited, Registered Office:6, Community Centre, Saket, New Delhi -110017
6. Mr.G.R. Ambwani, Director of Unitech Limited, Registered Office:6, Community Centre, Saket, New Delhi -110017
7. Mr.Sunil Rekhi, Director of Unitech Limited, Registered Office:6, Community Centre, Saket, New Delhi -110017.
8. Mr.Chanderkant Jain, Director of Unitech Limited, Registered Office:6, Community Centre, Saket, New Delhi -110017.

…. Opposite parties

Argued by:-      Sh.Satyaveer Singh, Advocate for the        complainant.

Mrs.Vertika H. Singh, Advocate for opposite party no.1.

Opposite parties no.2 to 4 exparte.

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

Complaint case No.	:	278 of 2017
Date of Institution	:	31.03.2017
Date of Decision	:	17-Aug-17

 

Saurabh Parakh son of Shri Surendra Kumar Parakh, presently at r/o House No.3346, Bankers Enclave, Sector 50-D, Chandigarh, through Shri Vijay Kumar Jain son of Sh.Nihal Chand Jain, r/o House No.3346, Bankers Enclave, Sector 50-D, Chandigarh

 

…… Complainant

V e r s u s

1. 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, through its Managing Director.
2. Alice Developers Pvt. Ltd., having its Registered Office at Basement, 6, Community Center, Saket, New Delhi-110017.

…. Opposite parties

Argued by:-      Sh.Raja Bahadur Singh Jain, Advocate for the complainant.

Mrs.Vertika H. Singh, Advocate for opposite party no.1.

Opposite party no.2 exparte.

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

Complaint case No.	:	322 of 2017
Date of Institution	:	17.04.2017
Date of Decision	:	17-Aug-17

 

1. Kumar Gaurav son of Late Sh.Ramesh Kumar, resident of House No.H.E.238/A, First Floor, Phase-7, Mohali-160062 (Punjab).
2. Kumar Vishav son of Late Sh.Ramesh Kumar, resident of House No.H.E.238/A, First Floor, Phase-7, Mohali-160062 (Punjab).

…… Complainants

V e r s u s

1. Unitech Limited, Regional Office/Marketing Office at SCO No.189-90-91, Sector 17, Chandigarh, through its Chairman/Managing Director/Authorized Signatory.
2. Unitech Limited, Registered Office:6, Community Centre, Saket, New Delhi -110017, through its Managing Director/Chairman.
3. Alice Developer’s Pvt. Ltd., Registered Office at Basement 6, Community Center, Saket, New Delhi-110017, through its Managing Director/Chairman.

…. Opposite parties

Argued by:-      Sh.Naveen Sharma, Advocate for the        complainants.

Mrs.Vertika H. Singh, Advocate for opposite parties no.1 and 2.

Opposite party no.3 exparte.

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

Complaint case No.	:	350 of 2017
Date of Institution	:	21.04.2017
Date of Decision	:	17-Aug-17

 

Ashwani Kumar Gupta son of Sh.Jagdish Chander, C/o J&K Bank, SCO No.240, Sector 20, Panchkula, Haryana.

…… Complainant

V e r s u s

1. Unitech Limited, through its Director, having its Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
2. Unitech Limited, through its Director, having Registered Office at 6, Community Centre, Saket, New Delhi -110017.
3. Alice Developer’s Pvt. Ltd., through its Director, having its Registered Office at Basement 6, Community Center, Saket, New Delhi-110017.
4. Sanjay Chandra, Managing Director of Unitech Limited, having Registered Office at 6, Community Centre, Saket, New Delhi -110017.
5. Sanjeev Hingorani, Director of Alice Developer’s Pvt. Ltd., having its Registered Office at Basement 6, Community Center, Saket, New Delhi-110017.

…. Opposite parties

 

6. Housing Development Finance Corporation Limited, SCO 153-154, Sector 8-C, Chandigarh.

…. Proforma Opposite party

Argued by:-      Sh.Deepak Aggarwal, Advocate for the      complainant.

Mrs.Vertika H. Singh, Advocate for opposite parties no.1 and 2.

Ms.Anjali Moudgil, Advocate for opposite party no.6.

Opposite parties no.3 to 5 exparte.

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

Complaint case No.	:	405 of 2017
Date of Institution	:	12.05.2017
Date of Decision	:	17-Aug-17

 

Pushpa Parashar W/o R.K. Parashar, H.No.5064/B, Sector 38 West, Chandigarh-160036, Mobile No.9815111147

…… Complainant

V e r s u s

1. Unitech Limited, Registered Office at 6, Community Centre, Saket, New Delhi-110017, through its Managing Director/Director/Authorized Signatory.
2. Unitech Limited, Real Estate Division (Marketing) 5^th Floor, Tower A, Signature Towers, South City, NH-8, Gurgaon-122001, through its Managing Director/Director/Authorized Signatory.
3. Unitech Limited, SCO 189-90-91, Sector 17C, Chandigarh, through its Managing Director/Director/Authorized Signatory.
4. Alice Developers Pvt. Ltd., Office at Basement 6, Community Centre, Saket, New Delh-110017, through its Managing Director/Director/Authorized Signatory.
5. Ramesh Chandra, Director of Unitech Limited, C-41, Mayfair Gardens, Hauz Khas, New Delhi-110016.
6. Ajay Chandra, Director of Unitech Limited, C-41, Mayfair Gardens, Hauz Khas, New Delhi-110016.
7. Sanjay Chandra, Director of Unitech Limited, C-41, Mayfair Gardens, Hauz Khas, New Delhi-110016.
8. Sanjeev Hingorani, Director of Alice Developers Pvt. Ltd., Flat No.002, Tower 17, The Close North Nirvana Country, South City II, Sector 50, Gurgaon 122018.

…. Opposite parties

Argued by:-      Sh.Munish Goel, Advocate for the complainant.

Mrs.Vertika H. Singh, Advocate for opposite party no.1 to 3.

Opposite parties no.4 to 8 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 aforesaid five consumer complaints. It is necessary to add here that in consumer complaint bearing no.278 of 2017, at the time of preliminary hearing on 06.04.2017, Counsel for the complainant confined his prayer only qua refund of amount deposited alongwith interest and other relief, instead of possession of the flat. In this complaint (CC No.271 of 2017), the complainant is seeking refund of amount deposited towards plot purchased and in the remaining four complaints, the complainants are also seeking refund of amount paid towards price of the flats purchased, in respective projects of the opposite parties/Unitech Limited and Alice Developers Pvt. Ltd. As such, 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 10.08.2017, it was also agreed by the contesting parties, that facts involved in the above complaints, by and large, are the same, and therefore, these five complaints can be disposed of, by passing a consolidated order.

2.         To dictate order, facts are being taken from consumer complaint bearing no.271 of 2017 titled as Sanjay Kakar Vs. Unitech Limited and others. It is necessary to mention here that, on 03.04.2017, notice in the complaint was issued only to opposite parties no.1 to 4, because Counsel for the complainant did not press the service of opposite parties no.5 to 8. Opposite party no.1 is the promoter Company. Opposite party no.2 is its Chairman and opposite parties no.3 and 4 are the Managing Directors of the Company. On the adjourned date i.e. 25.04.2017, Ms.Vertika H.Singh, Advocate, put in appearance on behalf of opposite party no.1 and filed her memorandum of appearance. To await service of opposite parties no.2 to 4, matter was adjourned to 22.05.2017, on which date, none appeared on their behalf. Accordingly, they were proceeded against exparte.

                It is further necessary to mention here that, opposite party no.1 Company, of which, opposite parties no.2 to 4 are the Chairman and Managing Directors, is represented through a Counsel. Under above circumstances, it cannot be expected that pendency of this complaint was not known to opposite parties no.2 to 4. We have noted in large number of cases that their object appears only to delay the proceedings. Reply and evidence was filed on behalf of opposite party no.1 only and all the averments made against opposite parties no.2 to 4 have gone unrebutted. They being the Chairman and Managing Directors are responsible for day to day functioning of the Company. (hereinafter opposite parties no.1 to 4 are referred to as ‘the opposite parties’).

3.         It is case of the complainant that believing on assurances given by the opposite parties, he purchased one plot no.115, measuring 358.80 square yards, in their project named ‘Boulevard”, Uniworld City, Sector 107, Mohali, Punjab.  The plot was purchased for his residential purposes. It is necessary to mention here that the complainant is a second allottee. He had purchased the said plot, from the original allottee namely M/s Manohar Singh and Co., through an Agreement to Sell dated 17.12.2009,  Annexure C-2. Total sale consideration of the plot, in question, was fixed at Rs.51,12,900/-, inclusive of external development charges, preferential location charges, if any, etc. The complainant paid an amount of Rs.4 lacs, to the above said Company i.e. M/s Manohar Singh and Co. It is so reflected in the Agreement to Sell, referred to above. It is further case of the complainant that thereafter, the opposite parties executed Buyer’s Agreement, in favour of original allottee, namely M/s Manohar Singh and Co. on 08.03.2010 and on the basis of Agreement to Sell dated 17.12.2009 Annexure C-2, by making an endorsement, in the said Buyer’s Agreement, the plot, in question, was transferred in favour of the complainant. It is also stated by the complainant that in view of above facts, he has stepped into the shoes of the original allottee and became purchaser of the plot, in dispute. It was further stated that at the time of purchase of the said plot, the complainant was assured by the opposite parties that possession of the developed plot will be handed over within a period of 36 months, from the date of signing of the above said Buyer’s Agreement i.e. on or before 07.03.2013. It is further stated that copy of the Buyer’s Agreement dated 08.03.2010 was handed over to the complainant, after two years, from the date of signing of the same. To say that possession of the developed plot was to be handed over within a period of 36 months, from the date of signing of the Agreement, reliance has been placed on Clause 4 (a) (i), which reads thus:-

““(i) That the possession of Plot shall be delivered by the Developers to the Allottee(s) within 36 months hereof subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable by the intending Allottee(s) as provided herein have been paid to the Developers. It is, however, understood between the Parties that various Plots comprised in the Township shall be ready in phases and handed over accordingly.”

 

4.         Thereafter, further payments were made by the complainant, from time to time, as and when demanded by the opposite parties and by the time, this complaint was filed, it is stated by the complainant that he had already deposited an amount of about Rs.50 lacs (not disputed by the opposite parties). It is specifically stated by the complainant that he was offered time linked payment plan and as per stipulation made therein, on making demand on 18.03.2011, he paid further amount of Rs.2,24,250/-, through cheque dated 02.04.2011. Thereafter, no further demand was raised. It was stated that the complainant was in need of the plot, as he wanted to construct his house, and live near to Chandigarh. When sensing that possession of the plot is going to be delayed, an email was sent by his father on 12.06.2012, seeking delivery of possession of the plot, in question. He received reply through email dated 19.06.2012, indicating that delivery of possession of the plot, in the said project, would start by second quarter of 2013. Thereafter, emails continued to be exchanged between the parties. In response to the query raised by the complainant, the opposite parties through email dated 19.05.2016, Annexure C-10, stated that possession of the developed plot is going to be offered, within four to six months. Relevant contents of the said email read thus: -

“Sir,

This is in reference to your mail dated 1.4.16. We are extremely sorry for delay due to hard conditions of Real Estate Sector but thank you a lot for your patience and cooperate us in rough time. Now I would like to confirm you that all development works in Sector 107 have been started and the possession of the said plot will be offered within four to six months.

We appreciate your concern.”

 

                It was stated that development work in Sector 107 has started and possession of the plot will be offered within four to six months (2016). However, it was not done. At that stage, this complaint was filed.

5.         In the reply filed by opposite party no.1, many preliminary objections were taken to defeat genuine claim raised by the complainant. Territorial jurisdiction of this Commission was challenged by stating that Buyer’s Agreement was signed at New Delhi and also all the payments were received by Gurgaon Office of the opposite parties, as such, no cause of action accrued to the complainant, to file this complaint before this Commission. Pecuniary jurisdiction of this Commission was also challenged. It was pleaded that the complaint filed is beyond limitation. It is asserted that the plot, in question, was purchased for future gain, as such, the complainant being investor, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 (in short the Act).
6.         On merits, it is admitted that the complainant had purchased a plot, in the project of the opposite parties, in resale, in the manner, referred to above. It was stated that the complainant being reallottee, cannot step into shoes of original allottee, as such, he is not a consumer. Fact qua price of the plot, as mentioned in the complaint is not disputed. It is stated that consumer complaint was not maintainable, and only a Civil Court, could adjudicate the dispute, in question, the transaction being contractual in nature. It was not seriously disputed that as per Article 4.a.(i) of the Agreement, the opposite parties were to hand over possession of the plot, 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 was averred that the said period was tentative and no firm date to hand over possession of the developed plot was ever promised vide the said Agreement. It is clarified that opposite party no.1, could not hand over possession of the plot to the complainant, by the stipulated date, as there was global meltdown/recession of the economy worldwide, resulting into financial hardship and also due to objections raised by the Punjab State Power Corporation Limited (PSPCL), a number of times, for issuance of approvals/sanctions. It was averred that, as such, it could very well be said that opposite party no.1 faced force majeure circumstances, as a result whereof delay aforesaid took place and the Company is entitled to reasonable extension of time, as per Clause 8 (b) of the Agreement. It was stated that development and construction at the project site, is in full swing and opposite party no.1 is making efforts to give possession of the developed plot purchased by the complainant. It was averred that opposite party no.1 has even applied for partial completion certificate, to the Competent Authority, vide letter dated 03.02.2016. It was stated that in terms of Clause 2 (e) of the Agreement, in case, the buyer cancels the allotment, and/or seek refund of the amount deposited, opposite party no.1 is at liberty to forfeit the booking/earnest amount, out of the deposited amount, as the case may be. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
7.         The contesting parties led evidence in support of their cases and raised arguments, in terms of pleadings noted in earlier part of this order, which were heard, in detail.
8.         Before making any reference to the merits of the case, we would like to decide an objection raised by opposite party no.1 that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It is necessary to mention here that the complainant has sought refund of entire amount (Rs.50 lacs, as mentioned in para no.13 of the complaint, which was not disputed by opposite party no.1, in its reply) alongwith interest @18% p.a. from the respective dates of deposits, till realization; compensation by way of making payment @ Rs.50/- per square yard, per month, of the area of the plot, for the period of delay: compensation to the tune of Rs.20 lacs, for mental agony and physical harassment; and cost of litigation to the tune of Rs.1.10 lacs. At the time of arguments, it is argued by Counsel for opposite party no.1 that if the entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and in that event, it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016,

                We are not going to agree with the submission raised. This Commission, in the case of Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, by relying upon the ratio of judgment titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC), held that when determining pecuniary jurisdiction, in a complaint, component of interest claimed, is not to be added in the relief sought. In that case, it was recorded as under:- 

“In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. 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.”

It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/ Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

 

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

 

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

 

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

 

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

 

In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

       

                Thus, in the present case also, if interest is not added to the entire claim raised, it will remain below Rs.1 crore. In view of above, objection raised by Counsel for opposite party no.1 stands rejected.

9.         To defeat claim of the complainant, an objection was also raised by opposite party no.1 that the complainant is an investor, as he has purchased the plot, 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 may be stated here that there is nothing, on record to show that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. As such, in the absence of any cogent evidence, in support of the objection raised by opposite party no.1, 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 has also stated that the unit was purchased to construct residential house. 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 party no.1 in its written reply, therefore, being devoid of merit, is rejected.  

10.         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, a consumer complaint can 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 from contents of the Buyer’s Agreement, that it has specifically been stated that the Company is a Public Limited, having its Marketing Office at Unitech Limited, SCO 189-90-91, Sector 17C, Chandigarh. At the same, it is evident from the documents, placed on record by opposite party no.1 itself, that correspondence with regard to approvals/sanctions, in respect of the said project, was exchanged between Chandigarh Marketing Office of the opposite parties and the Competent Authorities. Not only as above, in large number of cases filed before this Commission, against the same project, it has been proved and held by this Commission, that the opposite parties were carrying out their business and were marketing the project, in question, from Unitech Limited, SCO 189-90-91, Sector 17C, Chandigarh. Under these circumstances, it can very well be said that this Commission, at Chandigarh, has territorial jurisdiction, to entertain and decide this complaint, in view of Section 17 (2) (a) (b) and (c) of the Act.  Furthermore, in State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839, it was held that the Court(s), in whose Jurisdiction, products/goods are marketed, will have the territorial Jurisdiction to entertain and decide a complaint. In view of above, the objection taken by opposite party no.1, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 
11.         An objection was also raised by opposite party no.1 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 complainant hired the services of the opposite parties, for purchasing the plot, in the manner, referred to above. According to condition no.4.a.(i) of the Agreement, physical possession of the developed plot, was to be delivered by the opposite parties, within a period of 36 months, from the date of execution of the same (Agreement) alongwith all basic amenities as mentioned in Article 2.a.(ii) of the Agreement, which they failed to do so. There is a breach of terms and conditions of the Buyers’ Agreement, which amounted to deficiency in providing service. 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 party no.1 in this regard, being devoid of merit, must fail, and the same stands rejected.

12.         Another objection was raised by Counsel for opposite party no.1, that since the complainant is a reallottee, as such,  he is not a consumer. It is not in dispute, that the complainant had purchased the plot, in resale, from the original owner, M/s Manohar Singh and Co., vide Agreement to Sell dated 17.12.2009  Annexure C-2. Buyer’s Agreement dated 08.03.2010 was also executed between the original allottee and the opposite parties. Thereafter, sale transaction was endorsed by the opposite parties, in favour of the complainant. It is well settled law that once the property is transferred/endorsed, in the name of the buyers from the original owner, he/she/they (buyer(s), is/are vested with all the rights and interests, accrued in favour of his/her predecessor(s), as he/she/they stepped into her/his/their shoes. It was also so said by the National Consumer Commission, New Delhi in case Vatika Limited   Vs Mr. Rajneesh Aggarwal, Revision Petition No. 525 of 2013, decided on 22.07.2014, wherein the complainant was the fourth subsequent allottee. In that case, the National Commission, held as under:-  

“So far as the case of Raje Ram is concerned, the facts of the present case are totally different. In the present case, the respondent/complainant had purchased the apartment in question from the first transferee on 29.4.2006 when the construction had not been completed and   purchase/transfer of the apartment was duly approved by the petitioner company after charging Rs.65,840/- as transfer charges. In the circumstances, the petitioner company could not deny its role as a service provider to the respondent/complainant and has to be held liable for any deficiency in service with reference to the terms and conditions of the agreement which was made equally applicable to the complainant also consequent upon the approval of the assignment by the petitioner company on 30.4.2006 on payment of the transfer charges to the petitioner company. For the reasons stated above, we do not find any merit in the revision petition and the same is dismissed accordingly but with no order as to costs.”

                The principle of law laid down in the aforesaid case, decided by the National Commission is fully applicable to the present case. In view of the above, argument raised by Counsel for opposite party no.1, being devoid of merit, is rejected.

13.         Now it is to be seen as to whether, the complainant is entitled to refund of amount paid by him or not. It is admitted on record that originally the plot, in dispute, was sold in favour of M/s Manohar Singh and Co. The said plot was later on purchased by the complainant, from the said company, vide Agreement to Sell dated 17.12.2009  Annexure C-2. The complainant paid an amount of Rs.4 lacs, to the above said Company i.e. M/s Manohar Singh and Co. Thereafter, further amount was paid, when Agreement was signed between M/s Manohar Singh and Co. and the opposite parties, on 08.03.2010 Annexure C-1. In the said agreement, in Clause 2(b)  it is admitted that the original allottee had paid an amount of Rs.8,97,000/- . Total price of the plot was fixed at Rs.51,12,900/-. The complainant was offered time linked payment plan. Thereafter, on demand being raised, he further deposited an amount of Rs.2,24,250/- vide receipt dated 05.04.2011. As per Clause 4 (a) (i) of the Buyer’s Agreement dated 08.03.2010, the opposite parties committed to hand over of the plot, within a period of 36 months, from the date of signing of the same. It was further provided in the said agreement that in case, there is delay, in handing over possession of the said pot, the opposite parties will pay an amount of Rs.50/- per square yard, per month of area of the plot, for the said delayed period.  It was further indicated in the said agreement that before offering possession of the plot, notice will be sent to the purchaser. It is specific case of the complainant that thereafter, no demand was raised in respect of the said plot and there was no development going on at the spot. The said fact is coming out to be true, when we look into the contents of email dated 19.06.2012, Annexure C-8, sent by the opposite parties, in response to email dated 12.06.2012, sent by the complainant seeking confirmation regarding the date of handing over possession of the plot, in question. In the email dated 19.06.2012, the opposite parties admitted that sewer and storm water pipes had been laid in front of the plot, in question, and possession of plots in the said project (Boulevard, Sector 107), was excepted by 2^nd quarter of the year 2013. As per Buyer’s Agreement dated 08.03.2010, end date to hand over possession was fixed latest by 07.03.2013. Thereafter, the complainant continued to communicate with the opposite parties, seeking delivery of possession, however, vide email dated 19.05.2016, it was intimated that development work had now started in Sector 107 and possession of the plot will be delivered within 4 to 6 months. The said promise also turned out to be false. At the time of arguments, when we asked Counsel for opposite party no.1 to give firm date to hand over possession, she very hesitantly stated that, as on today, occupation and completion certificates, qua the project, in question, are not available with the opposite parties. She further stated that possession of the plot is likely to be delivered within next one year. However, we are of the considered opinion that even this statement appears to be incorrect. In large number of cases, earlier decided by this Commission, qua the said project, about more than a year ago, a similar statement was given on behalf of the opposite parties that possession of developed plots, will be handed over, in next six months, however, nothing had happened and the said promise turned out to be false. It is apparent on record that the opposite parties have failed to discharge their promise made vide Agreement dated 08.03.2010.            
14.         In the written version, opposite party no.1, frankly admitted that possession of the developed plot, could not be offered to the complainant, by the stipulated date, or by the date this complaint was filed, 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)/GMADA. Admission made by the opposite parties, itself, makes it clear that they have not obtained necessary approvals/sanctions from the PSPCL, as a result whereof, they were not provided with electricity, for the project in question. Still, the opposite parties are working on obtaining permissions, from the PSPCL/GMADA. It is significant to note here that even partial completion certificate has not been obtained by the opposite parties, till date, what to speak of obtaining final completion certificate, which is mandatory, before delivery of possession of the plot. Mere moving of application, making request to the Competent Authorities, for issuance of partial completion certificate, is of no help to the opposite parties.

                Now coming to the plea taken regarding financial hardship, due to recession in the market/global meltdown, it may be stated here that it is not that the opposite parties were, in the first instance, required to develop the project, by arranging funds out of their own sources, and, thereafter, the plots/flats were to be sold to the allottees, on future payment basis. Had this been the case of the opposite parties, only in those circumstances, the plea with regard to facing extreme financial hardship would have been considered to be correct, by this Commission.

                Secondly, 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 and development work at the site. 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/development work of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. There is no allegation of any lockout 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 parties or the contractors engaged by them, 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 construction/development work in 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 a case titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  2015 (4) CPR 34. 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 parties 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.”.

 

The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. The opposite parties, therefore, cannot take shelter under Article 8.b. of the Agreement, for extension of period, for delivery of possession of the plot. By making a misleading statement, that  possession of the plot, in question, would be delivered within a period of 36 months, from the date of execution of the Agreement but on the other hand, by not abiding by the commitments made, the opposite parties were not only deficient, in rendering service, but also indulged into unfair trade practice. Under these circumstances, it can be said that there is a material violation on the part of the opposite parties. It is settled law that when there is a material violation on the part of the builder, in not handing over possession of units/plots by the stipulated date, the purchaser is not bound to accept the offer, if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so held by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

15.         Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.”

 

16.         Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

                Under above circumstances, it is held that since there was a material violation on the part of the opposite parties, in not offering and handing over possession of the plot by the stipulated date, or even till date, as such,  the complainant is entitled to get refund of amount paid by him.

                In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.

17.         At the same time, it is also held that since a specific period of 36 months for handing over possession of the plot was promised by the opposite parties, vide Clause 4.a. (i) of the said Agreement, as such, the argument raised by Counsel for opposite party no.1, that the period of delivery of possession was tentative, as such, time is not to be considered as essence of the contract, has no legs to stand. Even otherwise, non-mentioning of exact date of delivery of possession of the residential unit(s) in the Buyer’s Agreement/Allotment Letter, is an unfair trade practice, on the part of the Builder, as has been held by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. In view of above, the plea taken up by Counsel for opposite party no.1, in this regard also stands rejected.
18.         It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainant. Despite making payment of huge amount, towards price of the said plot, nothing was provided to the complainant. 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 complainants, in all the complaints, are certainly entitled to get refund of the amount deposited by them, alongwith interest @15% compounded quarterly, (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). However, it is made clear that, in the cases, where the complainants are reallottees, they would be entitled to the said rate of interest, on the amount actually deposited by them, at the time of purchase of their respective units, in resale, onwards.
19.         As far as the plea taken by opposite party no.1, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (opposite parties) case, that they were ready with possession of the developed plot, to be delivered to the complainant, by the stipulated date but the complainant wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the opposite parties, only in those circumstances, it would have been held that since the complainant is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of the earnest money, as per law. In this view of the matter, the plea taken by opposite party no.1, in this regard, has no legs to stand and is accordingly rejected.
20.         In the connected complaints, referred to above, besides Unitech Limited/Company being a party to the complaint, the complainant(s) therein, have also sued Alice Developers Private Limited/Developer, as a necessary party to the complaint. However, since, in all the said connected complaints, despite deemed service, none put in appearance, on behalf of  Alice Developers Private Limited,  as such, it was proceeded against exparte, by this Commission, therein.  

                However, at the same time, while taking advantage of non-appearance of Alice Developers Private Limited, in those connected complaints, the opposite parties/Unitech Limited, in their joint written version, pleaded that they being only the confirming parties, cannot be held responsible for any deficiency in providing service, on account of non-delivery of possession of the flats by Alice Developers Private Limited, to the respective complainants. It was further pleaded that it was only Alice Developers Private Limited, which was responsible to develop the project and deliver possession of the respective units, to the complainants, in those connected complaints. Rest of the objections taken in those connected complaints, were almost similar, to what were taken in this consumer complaint bearing no.271 of 2017, and have been dealt with by this Commission, in preceding part of this order.

                It may be stated here that we have gone through the record of connected consumer complaints, referred to above, very minutely, and found that there is ample evidence on record to prove that the Company namely Unitech Limited,  was necessary party to the Agreements; the said Company admittedly marketed the project, in question; and had also received payment from the complainants, towards the said units, as such, they are equally liable alongwith Alice Developers Private Limited to refund the amount paid by the respective complainants, in the connected complaints, referred to above. The objection raised by Counsel for opposite parties/Company Unitech Limited, in connected complaints, referred to above, to the effect that they being only confirming parties are not liable to refund the amount paid by the complainants, being devoid of merit, stands rejected.

21.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, is within limitation or not.  It may be stated here that since it is an admitted case that offer of possession of the developed plot, in question, could not be made till date, for want of development, construction and basic amenities, (in connected cases also, possession of flats had not been offered by the stipulated date or even till date) and on the other hand, amount deposited, was also not refunded to the complainant alongwith interest, as such, there is a continuing cause of action, in his favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by limitation. The submission of Counsel for  opposite party no.1, in this regard, being devoid of merit, must fail, and the same stands rejected.
22.         Now, we will deal with the objection, raised by the Counsel for opposite party no.1, at the time of arguments, that in the face of existence of provision 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.

                We are not going to agree with the objection raised. This Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126 has already elaborately dealt with this question, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as 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), 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), and held that even in the face of existence of arbitration clause in an Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Furthermore, under similar circumstances, 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, held as under:-

“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.”

Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-

“We are unable to persuade ourselves to agree with the Learned Counsel.  In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon’ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon’ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors.  (Supra) still holds good, no fault can be found with the view taken by the State Commission. 

Consequently, the Appeal fails and is dismissed accordingly.”

                Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. In view of the above, the argument raised by Counsel for opposite party no.1, being devoid of merit, is rejected.

23.         No other point, was urged, by the contesting parties, in all the complaints, referred to above.
24.         In the complaint, in para no.17 and also at the time of arguments, it was submitted by Counsel for the complainants, that the Chairman and Managing Director/Directors, whose names have been mentioned in the head note of the complaints, are in-charge of affairs of the Company, and are responsible for all the acts and conduct committed by opposite party no.1. It was further specifically stated that they had personally allured the complainant, to buy residential plot in their project. As such, they are personally liable to refund the amount paid. As has been stated in earlier part of this order, the averments made against them have gone unrebutted, as such, we hold them personally liable for refund of the amount paid, with interest etc. For the reasons recorded above, all the five complaints are partly accepted, with costs, in the following manner:-

In consumer complaint bearing no.271 of 2017 titled as Sanjay Kakar Vs. Unitech Limited and others, opposite parties no.1 to 4, through Mr.Ramesh Chandra, Chairman, Mr.Ajay Chandra, Managing Director and Mr.Sanjay Chandra, Managing Director, jointly and severally are directed as under:-

1. To refund the entire deposited amount, alongwith interest @15% compounded quarterly, from the actual dates of deposits made by the complainant, at the time of resale onwards.
2. To pay compensation, in the sum of Rs.1.50 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.33,000/- to the  complainant.
4. Complaint against opposite parties no.5 to 8 is dropped, as far as the present complaint is concerned.

In consumer complaint bearing no. 278 of 2017 titled as Saurabh Parakh Vs. Unitech Limited and another, opposite parties no.1 and 2, jointly and severally are directed as under:-

1. To refund the amount of Rs.9,32,364/- alongwith interest @15% compounded quarterly, to the complainant, from the actual dates of  deposits  made by him, at the time of resale onwards.
2. To pay compensation, in the sum of Rs.30,000/- 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.11,000/- to the  complainant.

In consumer complaint bearing no.322 of 2017 titled as Kumar Gaurav and another Vs. Unitech Limited and others, opposite parties no.1 to 3, jointly and severally are directed as under:-

1. To refund the amount of Rs.9,45,060/- alongwith interest @15% compounded quarterly, to the complainants, from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.30,000/- 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.11,000/- to the  complainants.

In consumer complaint bearing no.350 of 2017 titled as Ashwani Kumar Gupta Vs. Unitech Limited and others, opposite parties no.1 to 5, through Sanjay Chandra Managing Director of Unitech Limited and Sanjeev Hingorani Director of Alice Developers Pvt. Ltd., jointly and severally are directed as under:-

1. To refund the amount of Rs.40,08,292/- alongwith interest @15% compounded quarterly, to the complainants from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.1.50 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.33,000/- to the  complainant.
4. Complaint against opposite party no.6 (HDFC) is dismissed with no order as to cost.

In consumer complaint bearing no.405 of 2017 titled as Pushpa Parashar Vs. Unitech Limited and others, opposite parties no.1 to 8, through Ramesh Chandra, Ajay Chandra and Sanjay Chandra Directors of Unitech Limited and Sanjeev Hingorani Director of Alice Developers Pvt. Ltd., jointly and severally are directed as under:-

1. To refund the amount of Rs.20,40,653/- alongwith interest @15% compounded quarterly, to the complainant, from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.1 lac, 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.22,000/- to the  complainant.

25.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii), in all the five complaints, 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%, in the manner, ordered in respective complaints, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of the respective complaints, till realization.
26.         However, it is made clear that, if the complainant(s) in any of the above complaints, have availed loan facility from any banking or financial institution, for making payment towards the said plot, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants), respectively.
27.         Certified copy of this order, be placed on connected complaint file, referred to above.
28.         Certified copies of this order be sent to the parties, free of charge.
29.         The file be consigned to Record Room, after completion.

Pronounced.

17-Aug-17

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

MEMBER

 Rg.