Chandigarh

StateCommission

CC/376/2018

Anil Kumar Khosla - Complainant(s)

Versus

BCL Homes Ltd. - Opp.Party(s)

Arun Kumar & Varun Bhardwaj, Adv.

13 May 2021

ORDER

  STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	376 of 2018
Date of Institution	:	08.10.2018
Date of Decision	:	13.05.2021

 

1. Anil Kumar Khosla son of Sh.M.S. Khosla, resident of House No.129, 1^st Block, 2^nd Floor, Green Valley Apartments, Dhakoli, Zirakpur (Pb.), through Kiran Bahl, Special Power of Attorney.
2. Karan Khosla, son of Sh.Anil Kumar Khosla, resident of House No.129, 1^st Block, 2^nd Floor, Green Valley Apartments, Dhakoli, Zirakpur (Pb.), through Kiran Bahl, Special Power of Attorney.

 

……Complainants

V e r s u s

 

1. BCL Homes Ltd., Regd. Office: Shop No.140, Railway Station Road, Village Dariya, U.T., Chandigarh, through its Managing Director/Director.
2. Baldev Chand Bansal, Director BCL Homes Ltd., House No. 253, Sector 7, Panchkula.
3. Tajinder Kumar Bansal, Director BCL Homes Ltd., Village Kishanpura,  NAC Zirakpur, District Mohali.

…..Opposite parties

Present through video conferencing:

                      Sh.Varun Bhardwaj, Advocate for the complainants.

Sh.Mohit Garg, Advocate proxy for Sh.Paras Money Goyal, Advocate for  opposite parties no.1 and 2.

Opposite party no.3 exparte vide order dated 20.02.2019.

 

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

Complaint case No.	:	377 of 2018
Date of Institution	:	08.10.2018
Date of Decision	:	13.05.2021

 

1. Anil Kumar Khosla son of Sh.M.S. Khosla, resident of House No.129, 1^st Block, 2^nd Floor, Green Valley Apartments, Dhakoli, Zirakpur (Pb.), through Kiran Bahl, Special Power of Attorney.
2. Himanshu Khosla, son of Sh.Anil Kumar Khosla, resident of House No.129, 1^st Block, 2^nd Floor, Green Valley Apartments, Dhakoli, Zirakpur (Pb.), through Kiran Bahl, Special Power of Attorney.

 

……Complainants

V e r s u s

 

1. BCL Homes Ltd., Regd. Office: Shop No.140, Railway Road, Village Dariya, U.T., Chandigarh, through its Managing Director/Director.
2. Baldev Chand Bansal, Director BCL Homes Ltd., House No. 253, Sector 7, Panchkula.
3. Tajinder Kumar Bansal, Director BCL Homes Ltd., Village Kishanpura,  NAC Zirakpur, District Mohali.

…..Opposite parties

Present through video conferencing:

                            

                      Sh.Varun Bhardwaj, Advocate for the complainants.

Sh.Mohit Garg, Advocate proxy for Sh.Paras Money Goyal, Advocate for the opposite parties no.1 and 2.

Opposite party no.3 exparte vide order dated 20.02.2019.

 

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BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS. PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

PER RAJESH K. ARYA, MEMBER

                  

                   By this order, we propose to dispose of the aforesaid two consumer complaints. Since, the issues involved in the above complaints, except minor variations, here and there of fact and law are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.

 

2.           The aforesaid complaints have been filed by the respective complainants, seeking refund of the amount paid by them alongwith interest; compensation etc., as they are aggrieved of deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties, on the ground that there has been delay with regard to delivery of possession of the respective units booked by them, in their (opposite parties) project, for dearth of construction & development activities and also necessary permissions have not been obtained from the competent Authorities for launching the project, wherein the units in dispute are located. Details with regard to the project in dispute; units booked; payments made by the complainants; etc. of these complaints are given below:-

 

CC No.	376 of 2018	377 of 2018
Project name	Chinar Homes, Chinar City, Kishanpura, Rajpura Road, Zirakpur, Mohali, Pb.	Chinar Homes, Chinar City, Kishanpura, Rajpura Road, Zirakpur, Mohali, Pb.
Booking date	07.03.2011	24.02.2011
Unit description	3 BHK Apartment	Not mentioned anywhere
Total cost	27,00,000/-	45,00,000/-
Amount paid	2,70,000/-	9,00,000/-
Agreement	Not executed	Not executed
Possession offered or not	Not offered	Not offered
Allottee	Original allottee	Original allottee

         

3.           Hence these complaints.  
4.           Since none put in appearance on behalf of opposite party no.3, as such, it was proceeded against exparte vide order dated 20.02.2019.
5.           The claim of the complainant has been contested by the opposite parties no.1 and 2 on numerous grounds,  inter alia, that the complaints filed are barred by time; that the complainants did not fall within the definition of “consumer” as the units in question were purchased for commercial purposes; that this Commission did not have territorial jurisdiction to entertain these complaints; that construction work is going on and possession of the units is likely to be delivered by end of 2019; that since no allotment has been made in favour of the complainants, as such, they cannot be termed as consumers; that lot of development work has been completed and basic amenities have been provided at the project site; that the complaints cannot be filed through power of attorneys who are not aware of the facts and circumstances of the cases.
6.           On merits, booking of the units in question; payments made by the complainants, referred to above; non delivery of possession of the units to the complainants have not been disputed. It has been stated that the Canara Bank from which the company has applied for obtaining loan to fund the project, played fraud and forged the documents; that the said bank failed and neglected to understand the gravity of situation; that due to lethargic approach of the said bank, financial health of the company was defeated a lot, as it did not release the loan amount;  that instead of helping the company, the said Bank proceeded against the company under SARFAESI Act; and that the complainants have also approached Debt Recovery Tribunal, Chandigarh against the said Bank despite the fact that in the event of any dispute, the matter was to be resolved through Arbitrator. Remaining averments were denied being wrong.
7.           The contesting parties led evidence in support of their cases.
8.           We have heard the contesting parties and have gone through the entire record of these cases, including written arguments filed by the complainants, very carefully.
9.           First of all, coming to the objection raised with regard to jurisdiction of this Commission on the ground that the matter needs to be adjudicated through Arbitrator, it may be stated here that  though this Commission is not bound to deal with this issue because not even a single document has been placed on record in this regard, still, we want to mention here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the opposite parties, otherwise also, stands rejected.
10.           Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the instant cases, record reveals that welcome letter Annexure C-3 in respect of booking of unit in favour of the complainants  (in CC No377 of 2018) was sent by the opposite parties from its office at SCO No.8, Sector 26, Madhya Marg, Chandigarh, meaning thereby that the Company was actually and voluntarily residing and carrying on business from its Office at Chandigarh and personally worked for gain thereat. Thus, it is held that this Commission at Chandigarh has got territorial jurisdiction to entertain and decide these complaints. Objection taken in this regard stands rejected.
11.           Now coming to the objection taken to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainants, in these complaints, have purchased the units in question, in the manner explained above, to indulge in ‘purchase and sale of units’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their  onus, hence we hold that the complainants are consumer as defined under the Act. Objection taken in this regard, therefore, stands rejected. 

                   Furthermore, the moment, the complainants booked the units in question and deposited the booking amounts aforesaid, the opposite parties started rendering service to them. In the Tamil Nadu Housing Board and Anr. Vs. A.V. Ramakrishna, III (1994) CPJ 137 (NC), a case decided by a three Member Bench of the Hon’ble National Commission, the principle of law, laid down was to the effect that a potential user who applied for the allotment of a flat/plot, and deposited the registration fee, fell within the definition of a consumer, as the opposite parties started rendering service, to him/her, right from the day, the application for the same was moved. Not only this, in Virender Jain Vs. Alaknanda Cooperative Group Housing Society Limited, 2013 (3) Recent apex Judgments (R.A.J.) 528 (S.C.)= 2013 (2) R.C.R. (Civil) 980 (S.C.), it was held that by making applications, for allotment of land, the Societies would be deemed to have hired or availed of the services of the Chandigarh Administration, and the Board, in relation to housing construction, as elucidated and explained in Lucknow Development Authority Vs. M.K. Gupta, Civil AppelaNo.6237 of 1990 = III(1993)CPJ 7 (SC)= AIR 1994 787=1994 SCC (1) 243.  In Chandigarh Housing Board Vs. Avtar Singh and Others, 2010 (4) RCR Civil 579 SC, the same principle of law, was laid down. The principle of law laid down in the aforesaid cases is fully applicable, to the instant case. The complainants, thus, hired the services of the opposite parties, as a potential user, for consideration, and, thus, they fell within the definition of a consumer. Objection taken by opposite parties no.1 and 2 in this regard being devoid of merit, must fail, and the same stands rejected.

12.           There is no dispute with regard to purchase of units by the complainants, as per the details mentioned in the chart above. There is also no dispute with regard to the fact that despite the fact that substantial amounts stood received by the opposite parties from the complainants, yet, neither units nos. have been allocated nor agreements have been executed between the parties nor possession thereof has been offered and delivered to the complainants. In these complaints, the complainants, through their Counsel, have submitted that the opposite parties failed to provide agreements for signatures, within a reasonable period after booking of the units; that the project of the opposite parties is under litigation; and that now it appears that they will not be able to deliver possession of the units to the complainants.                                   
13.           However, to wriggle out of the situation, opposite parties no.1 and 2, through their Counsel, have submitted that though they have floated the project after obtaining all necessary approvals/sanctions, yet, it was the Canara Bank from which they were to avail housing loan, which put hurdles in their way, as it played fraud and forged the documents and as such, due to its lethargic approach, financial health of the company was defeated a lot, as it did not release the loan amount. It has been further contended that instead of helping the company, the said Bank proceeded against the company to take action under SARFAESI Act.               It may be stated here that not even a single document has been placed on record by opposite parties no.1 and 2 to support their aforesaid version and as such, in our considered opinion in the absence of any documentary evidence, it has no significant value in the eyes of law. Even otherwise, if there was any alleged dispute between the opposite parties and the said bank, the complainants have no relation whatsoever with the same. If the opposite parties took a risk and proceeded to launch the project and started selling the units to the prospective buyers, including the complainants, without getting clearance from the said bank, then they have to blame themselves and for that reason, the complainants cannot be put at financial loss.
14.           In order to wriggle out of the situation, it has also been contended by opposite parties no.1 and 2 that construction work at the project site is going on and possession of the units is likely to be delivered by end of 2019. It may be stated here that the year 2019 has already gone and there is nothing on record that possession of the respective units complete in all respects has been delivered to the respective complainants, on receiving balance amount from the complainants.  It is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that, in the present case, not even an iota of evidence has been placed on record by the opposite parties to prove as to at which stage, construction and development work has reached at the project site and that as to whether approvals/sanctions have been obtained from the competent Authorities to launch the said project or not. In case, the development/construction activities are being undertaken and about to  complete at the project site, then it was for the opposite parties which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, are being undertaken and almost complete at the site or not, but they failed to do so.
15.           The facts of these cases transpire that the complainants are involved in a disadvantageous deal with the opposite parties and suffered financial loss, mental agony and physical harassment. All the facts established that from the very inception there was intent of the opposite parties to induce the complainants to enter into a deal and also intent to deceive in the matter. The project in question is farce. As such, objection taken in this regard also stands rejected.
16.           Now coming to the objection raised by the opposite parties, to the effect that these complaints are time barred, it may be stated here that not even a single document has been placed on record to prove that actual legal physical possession of the units in question, in a developed project was ever offered and delivered to the complainants, as such, there was a continuing cause of action in favour of the complainants to file these complaints, in view of principle of law 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), wherein it was held that when possession of the residential units/plots is not offered and delivered, there is a continuing cause of action, in favour of the allottee/buyer.  
17.           In view of facts and circumstances of these cases, we are of the considered opinion that we cannot make the complainants to wait for an indefinite period, in the matter. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date or when there is no agreement, within a reasonable period of two to three years from the date of booking, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442.  As such, we are of the considered opinion that if we order refund of the amounts paid by the complainants, in the respective complaints, alongwith interest @12% p.a. from the respective dates of deposits in view of decision rendered by the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment and also by the Hon’ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019  and Anil Kumar Jain & Anr  Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019, wherein interest @12% p.a. was awarded to the complainant, on the amounts to be refunded to them from the respective dates of deposits; that will meet the ends of justice.
18.           As far as objection taken with regard to power of attorneys is concerned, it may be stated here that the Consumer Protection Act is a beneficial legislation, to provide speedy, inexpensive and hassle free redressal to the grievance of the consumers. Contents of the power of attorneys clearly reveal that Sh.Anil Kumar Khosla-complainant no.1 in both the complainants has appointed her sister Kiran Bahl, as his attorney to pursue these consumer complaints, as he was living outside India and similarly complainant no.2 has also appointed her as her power of attorney to pursue his case. It is settled law that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. At the same time, it is also significant to mention here that the provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. It was also so said by the Hon’ble Supreme Court of India, in the case of V. KishanRao  Vs, Nikhil Super Speciality Hospital and another, CIVIL APPEAL NO.2641_ OF 2010, (Arising out of SLP(C) No.15084/2009), decided on  March 8, 2010. Relevant contents of the said order reads thus:-

“The Forum overruled the objection, and in our view rightly, that complaints before consumer are tried summarily and Evidence Act in terms does not apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in (2009) 9 SCC 221 that provisions of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice”

 

In view of above, the plea taken by opposite parties no.1 and 2, in this regard, stands rejected.

19.           For the reasons recorded above, both these complaints are partly accepted with costs, in the following manner:-

 

In CC No. 376 of 2018, the opposite parties, jointly and severally, are directed as under:-

 

1. To refund the amount of Rs.2,70,000/- to the complainants, alongwith interest @12% p.a., without deducting any TDS as this interest is granted as compensation, from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs. 2,70,000/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.

 

2. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/- to the complainants within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

In CC No. 377 of 2018, the opposite parties, jointly and severally, are directed as under:-

 

1. To refund the amount of Rs.9,00,000/- to the complainants, alongwith interest @12% p.a., without deducting any TDS as this interest is granted as compensation, from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.9,00,000/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.

 

2. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/- to the complainants within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

20.           However, it is made clear that in case the complainants, in any of the complaints above, have availed housing loan from any Bank(s)/financial institution(s) for making payment towards price of their respective units, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants against their respective units.
21.           Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case file.
22.           The files be consigned to Record Room, after completion.

Pronounced.

13.05.2021

 

Sd/-

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

 

Sd/-

 (RAJESH K. ARYA)

 MEMBER

 Rg.