Chandigarh

StateCommission

CC/628/2017

Col Harmeet Singh Sidhu - Complainant(s)

Versus

BCL Homes Ltd. - Opp.Party(s)

Narender Yadav & Vineet Yadav, Adv.

26 Mar 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint No.	:	628 of 2017
Date of Institution	:	22.08.2017
Date of Decision	:	26.03.2018

 

Col.Harmeet Singh Sidhu son of Col. (Retd.) Joginder Singh Sidhu, C/o Chief Engr. Branch, Western Command, Chandimandir Cantt. Panchkula.

…Complainant

V e r s u s

1. BCL Homes Ltd., Regd. Office Shop No.140, Railway Road, Village Dariya, U.T., Chandigarh, through its Authorized Signatory.

Site Address:- BCL Homes Ltd., Village Kishanpura, NAC Zirakpur, District Mohali, Punjab, through its Project Manager.

2. Baldev Chand Bansal, Managing Director, R/o H.No.253, Sector-7, Panchkula, Haryana-134109

…..Opposite Parties

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

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

                        SH.DEV RAJ, MEMBER

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:-       Sh.Narender Yadav, Advocate for the complainant.

Sh.Hitesh Verma, Advocate for opposite party no.2.

Opposite party no.1 exparte.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainant has filed this complaint, against opposite parties no.1 and 2, claiming refund of amount paid alongwith interest; compensation etc., by stating that they have failed to handover possession of the unit allotted to him, as per the Allotment Letter. Upon receipt of above complaint, notice was issued to the opposite parties for 11.09.2017, on which date, Sh.Hitesh Verma, Advocate, put in appearance, on behalf of opposite party no.2 and sought time of file his vakalatnama, reply and evidence. Since, as per office note, report qua notice sent to opposite party no.1, on 29.08.2017, through ordinary post was not received back, as such, its service was ordered to be awaited for next date. Accordingly, the complaint case was adjourned to 17.10.2017. On the said date, none put in appearance on behalf of opposite party no.1, as a result whereof, it was deemed to be served. Accordingly, opposite party no.1 was ordered to be proceeded against exparte, in terms of Regulation 10 (2) of the Consumer Protection Regulations 2005. Thereafter, reply and evidence was filed by opposite party no.2, admitting/denying allegations against opposite party no.1 also. 

                Before us, it is case of the complainant that allured by false promises, made by opposite parties no.1 and 2, he was made to purchase a flat bearing no.907 (A), Tower T-4, 9^th Floor, in their project, namely “Chinar Homes”, Kishanpura, Zirakpur, Punjab. Area of the flat was fixed at 2170 square feet. Total price of the unit was fixed at Rs.37.50 lacs. By the time this complaint was filed, the complainant had paid an amount of Rs.34,69,634/- in the following manner.

 

S.No.	Dated	Receipts No.	Amount
	28.09.2011	2428	586000.00
	28.09.2011	2429	164000.00
	28.09.2011	2430	19350.00
	31.10.2011	2981	375000.00
	31.12.2011	3497	375000.00
	27.03.2012	4207	375000.00
	27.03.2012	4209	19275.00
	27.03.2012	4208	9657.00
	01.06.2012	4612	375000.00
	01.06.2012	4611	11588.00
	07.09.2012	5231	340000.00
	07.09.2012	5232	35000.00
	07.09.2012	5230	11588.00
	02.12.2012	5611	11588.00
	01.12.2012	5610	375000.00
	04.03.2013	5938	130000.00
	04.03.2013	5939	145000.00
	04.03.2013	5940	100000.00
	05.03.2013	5942	11588.00
		Total	34,69,634.00

 

Allotment Letter was signed between the parties on 28.09.2011. It is case of the complainant that as per Clause 9 of the allotment letter, possession of the unit, in question, was to be delivered to him, by the opposite parties, within a period of 18 to 24 months, with a grace period of three months (total 27 months), from the date of issuance of allotment letter i.e. on or before 27.12.2013, after providing all the basic amenities. It was further stipulated in Clause 9 of the Allotment Letter that, in case, the opposite parties, failed to deliver possession of the unit by the said date, they were liable to make payment of Rs.10,000/- per month, to the complainant, towards rent, for the period of delay, beyond 27 months aforesaid. Relevant part of Clause 9 of the said Allotment Letter reads thus:-

“The possession of the said flat shall be delivered to the Allottee(s) in 18-24 months from the date of this Agreement/allotment, with a grace period of 03 months. However, in the event there is a delay in offering the possession/permissive possession of the Flat in the said period, for any reason not directly attributable to BCL Homes Ltd. shall be entitled to reasonable extension in time for delivery of possession/permissive possession. In the event of completion of the said Flat being delayed beyond 27 months from the date of this Agreement/allotment, for reasons directly attributable to BCL Homes Ltd. shall be liable to pay to the Allottee(s) monthly rent of Rs.10,000/- for the period of delay beyond the said 27 months period on the amount paid to BCL Homes Ltd. by the Allottee. The possession of the Flat shall be handed over on receipt of the all dues, documents, and on fulfillment of conditions as stipulated herein…………………..”

 

2.         It is stated by the complainant that he had deposited all the installments towards price of the said unit, in time. It was pleaded that, when delay in handing over possession took place, it was the duty of the opposite parties to offer an amount of Rs.10,000/- per month, referred to above. However, in the present case, the said amount was also not paid by the opposite parties.
3.         It is positive case of the complainant that as per information collected by him, on his visit to the project site, on different dates, construction of the unit and also other facilities were not ready with the opposite parties, to offer possession thereof, to the purchasers. Construction of tower, in which the unit was allotted to the complainant, was not complete. As and when possession was sought, vague response was given without committing any firm date to do the same. Fed up with behaviour of the opposite parties, the complainant wrote them letter dated 21.09.2015 Annexure C-3 seeking refund of amount paid alongwith interest. However, the said letter failed to yield any result.
4.         When nothing was done, the complainant was compelled to file this complaint, seeking refund of amount paid, alongwith interest, compensation and litigation expenses, by alleging deficiency in providing service and also adoption of unfair trade practice on the part of the opposite parties.
5.         In the reply filed by opposite party no.2, serious objections were raised qua territorial jurisdiction of this Commission.  It was stated that the project, in which the flat purchased by the complainant is situated in Village Kishanpur, Zirakpur, Mohali, Punjab; sale consideration was also paid by the complainant, at that place; allotment letter was also signed at the said place, as such, this Commission at Chandigarh is not vested with territorial jurisdiction to entertain and decide this complaint. It was pleaded that in the face of existence of arbitration Clause no.22 in the Allotment Letter, 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.   
6.         On merits, purchase of the unit, in question, by the complainant, for the price, as stated in earlier part of this order, is not disputed. Payments made were also not disputed. Issuance of Allotment Letter aforesaid, is admitted. It was also admitted that as per Clause 9 of the allotment letter, possession of the unit, in question, was to be delivered to the complainant, within a period of 18 to 24 months, with a grace period of three months (total 27 months), from the date of issuance of allotment letter i.e. on or before 27.12.2013, after providing all the basic amenities. It was stated that opposite party no.2 is ready to make payment of delay compensation @Rs.10,000/- per month, for the period of delay, in offering possession of the unit, in question.  It was further stated that possession of the unit, could not be offered on account of force majeure circumstances, beyond the control of opposite party no.2. However, no details qua that fact were provided in the written statement filed. No assurance was also made, as to within how much time, construction of the unit will be completed and possession is going to be delivered. It was averred that opposite party no.2 is trying its level best to complete construction and offer possession of the units to the allottees including the complainant. It is pleaded that the complaint is barred by limitation. Remaining averments were denied being wrong.
7.         The contesting parties led evidence, in support of their case.
8.         We have heard Counsel for the contesting parties, and have gone through record of the case, very minutely.
9.         First, we will deal with an objection, raised by opposite party no.2, 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.

               This objection has been raised in the written statement filed by opposite party no.2, by placing reliance on Clause 22 contained in the allotment letter. It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, 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/Allotment Letter, 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. 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. 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.

                In view of the above, the objection raised by opposite party no.2, in this regard, being devoid of merit is rejected.

10.         Now we will deal with another objection raised by opposite party no.2, to the effect that since the unit, in question, is situated at Mohali, Punjab, and also all the payments were received at Village Kishanpura, at the project site, as such, this Commission has got no territorial jurisdiction to entertain and decide the complaint.

                After taking notice of provisions of Section 17 (2) (a) and (c) of the Act, the objection raised needs rejection. Relevant provisions reads thus:-

“Section 17 in the Consumer Protection Act, 1986

17.  [(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,—

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

(b) …………………..

(c) the cause of action, wholly or in part, arises.]”

 

                It is specifically stated that a complainant can file a complaint in the State commission, within the limits of whose jurisdiction, the opposite party(s) actually and voluntarily resides or carries on business. It is evident from the payment receipts dated 01.09.2012 and  30.11.2012 (at pages 39 to 42) that the same have been issued by Registered Office of the opposite parties situated at Chandigarh i.e. Shop No.140, Railway Road, Village Dariya, U.T., Chandigarh. On the remaining payment receipts placed on record by the complainant, only correspondence address has been mentioned as Village Kishanpura, NAC Zirakpur, District Mohali, Punjab, meaning thereby that this address was meant for making any correspondence between the parties, whereas, the payments in respect of the unit, in question, were received by Registered Office of the Company, at Chandigarh only. In view of above, it can easily be said that the Company, is running its business from the said place at Chandigarh. Furthermore, since it is an admitted fact that payments, referred to above, towards the unit, in question, were received at Registered Office of the opposite parties, at Chandigarh, this Commission has got territorial jurisdiction to entertain the present complaint, in view of the provisions of Section 17 (2) (a) and (c) of the Act and also principle of law laid down by Hon’ble National Commission in Meera Chaudhary  Vs. M/s. M-Tech Developers Ltd., Ravinder Kumar Bajaj Vs. Parsvnath Developers Pvt. Ltd. & 3 Ors., First Appeal No. 2317 of 2017, decided on 06 March 2018, wherein it was observed as under:-

“………It is not in dispute that the Registered Office of the Respondent/Opposite Party is in New Delhi; the allotment letter to the Complainant was issued from the Respondent’s Office at New Delhi; and receipts, acknowledging deposit of the demand drafts towards the sale consideration, were issued in New Delhi.

In view of the said overwhelming documentary evidence on record, in the light of the plain language of Section 17(2)(a) of the Consumer Protection Act, 1986, there can hardly be any doubt that the Delhi State Commission did have the territorial jurisdiction to entertain the Complaint ……………”.

 

                In view of above, this Commission has got territorial Jurisdiction to entertain and decide this complaint.  Objection taken by opposite party no.2, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

11.         It is proved on record that the complainant has purchased a built-up unit, referred to above, for an amount of Rs.37.50 lacs, in a project launched by the opposite parties. Allotment Letter/Agreement, in this case was signed between the parties on 28.09.2011. As stated above, as per Clause 9 of the Allotment Letter, it was committed by the opposite parties that possession of the unit, in question, was to be delivered to the complainant, on or before 27.12.2013, after providing all the basic amenities, subject to force majeure circumstances. It was further committed vide the said Allotment Letter that, in case, the opposite parties, failed to deliver possession of the unit by the said date, they were liable to make payment of Rs.10,000/- per month, to the complainant, towards rent, for the period of delay, beyond 27 months aforesaid.

                It is virtually admitted on record that till today, no offer has been made to hand over possession of a constructed unit by the opposite parties to the complainant. Rather the opposite parties are still saying that they are making efforts to complete construction and offer possession of the built-up unit to the complainant. This appears to be a vague assurance, as no cogent and convincing evidence has been placed on record, to convince this Commission, regarding this fact. In a case titled as Chand Berry and another Vs. BCL Homes Limited and others, consumer complaint no.292 of 2015, decided by this Commission on 19.02.2016, under similar circumstances, when deciding that complaint filed by the complainants stating that for non-delivery of possession, directions be issued to refund amount with interest, this Commission has observed as under:-

“It is a case of failed promise and virtually deceit has been committed by opposite parties no.1 to 3, with the complainants. It was never disclosed to the complainants, by opposite parties no.1 to 3,  that the entire project land and construction to be raised thereon, stood mortgaged with opposite party no.5. Virtually after making more than 95% of the price of unit, delivery of possession thereof is not expected even in near future. Above fact clearly amounted to deficiency in providing service on the part of opposite parties no.1 to 3, which entitles the complainants  to get refund of amount paid by them, towards the unit.”

 

12.         Not only as above, in another similar case, titled as Rajesh Kumar Nagpal Vs. BCL Homes Ltd. and ors., CC No.724 of 2016, decided by this Commission, on 07.02.2017, it was noted as a matter of concern that the entire project site and the construction raised thereon stood mortgaged with the Bank namely Canara Bank, which fact was never brought to the notice of the buyers at the time of selling it (project). Under those circumstances, the Commission, while holding the builder/opposite parties deficient on this score, observed as under:-

“It was noted as a matter of concern that the entire project site and the construction raised thereon stood mortgaged with the Bank namely Canara Bank/opposite party no.4. At the time of arguments, it also transpires that for committing default in repayment of loan, dispute has been raised by the financial institutions in various Courts, Debt Recovery Tribunal etc. This act of opposite parties no.1 to 3, in committing default in repayment of loan, in no manner can be termed as force majeure circumstances, and as such, they cannot claim any immunity, under the said plea. Even otherwise, the complainant has no concern, whatsoever, with the dispute, if any, arose between opposite parties no.1 to 3 and opposite party no.4/Canara Bank (third party, with which there is no privity of contract with the complainant). If that is so, one cannot visualize handing over possession of the units, in near future. Neither in the written statement nor at the time of arguments, any commitment was made, giving exact time-frame, within which period, possession of the unit can be delivered to the complainant. It is on record that despite request made by the complainant, through legal notice dated 31.08.2016 (through registered post) to refund the amount with interest thereon, even reply was not given by opposite parties no.1 to 3. Above facts clearly amounted to deficiency in providing service on the part of opposite parties no.1 to 3, which entitles the complainant to get refund of amount paid by him, towards the unit”.

Under above facts, it is held that by not handing over possession of the unit, by the stipulated date, or even as on today, the opposite parties are deficient in providing service and also guilty of adoption of unfair trade practice.

13.         As far as plea taken by opposite party no.2 to the effect that delay in handing over possession of the unit to the complainant, took place on account of force majeure circumstances beyond the control of the Company, it may be stated here that except taking such a vague plea, nothing cogent and convincing evidence has been placed on record by opposite party no.2, in this regard. Under these circumstances, it can safely be said that such a plea has been taken by opposite party no.2, for the first time, in the written statement, just with a view to escape from its liability, which is not sustainable in the eyes of law and is accordingly rejected.
14.         Further objection taken by opposite party no.2, that the complaint filed by the complainant is barred by time, also stands rejected in view of the reasons that since it is an admitted fact that neither possession of the unit was offered nor delivered to the complainant, by the stipulated date for want of construction and basic amenities at the site, nor the penalty amount, as provided in allotment letter, was paid to him nor the amount deposited was refunded to him, as such, there is continuing cause of action, in favour of the complainant, to file this complaint. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time.
15.         Hard-earned money, deposited by the complainant, towards the unit, in question, was utilized by the opposite parties, for a number of years. The opposite parties, by neither delivering possession of the unit, in question, complete in all respects, by the stipulated date or even till date, nor refunding the deposited amount to the complainant, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant, is, thus, entitled to the refund of amount paid, alongwith interest, from the respective dates of deposits.

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

16.         At the same time, it is held that once this Commission has come to the conclusion that the complainant is entitled to get refund of the amount deposited alongwith interest and compensation, as such, the plea taken by opposite party no.2 that the Company is ready to pay compensation amount to the tune of Rs.10,000/- per month, for the period of delay, is rendered infructuous. Had the complainant sought possession of the unit, in question, the matter would have been different. The plea of opposite party no.2, in this regard, stands rejected.
17.         No other point was urged by the contesting parties.
18.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties are jointly and severally directed as under:-

1. To refund the amount of   Rs.34,69,634/- to  the complainant,  alongwith simple interest @12% per annum, from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.1,00,000/- 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.22,000/- to the complainant.
4. The aforesaid awarded amounts, in the manner mentioned in clauses (i) to (iii), shall be paid within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned in clause (i) shall carry penal interest @15% per annum instead of 12% per annum, from the respective dates of deposits, till realization and the amounts mentioned in clauses (ii) and (iii) shall carry interest @12% per annum, from the date of filing of this complaint, till realization.

19.         However, it is made clear that, if the complainant has availed loan facility from any Bank or financial institution for making payment towards price of the said flat, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
20.         Certified Copies of this order be sent to the parties, free of charge.
21.         The files be consigned to Record Room, after completion.

Pronounced.

26.03.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.