Chandigarh

StateCommission

CC/787/2016

Nitin Sood - Complainant(s)

Versus

BCL Homes Ltd. - Opp.Party(s)

Dhawal P.S. Ahluwalia, Adv.

07 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint No.	:	724 of 2016
Date of Institution	:	21.10.2016
Date of Decision	:	07.02.2017

 

Rajesh Kumar Nagpal son of Sh.K.L. Nagpal, resident of House No.348, Shivalik Vihar, Zirakpur, Patiala Road.

…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.
2. BCL Homes Ltd., Village Kishanpura, NAC Zirakpur, District Mohali, Punjab, through its Directors Tajinder Bansal, Rajeev Kumar.
3. BCL Homes Ltd., through its Managing Director, Sh.Baldev Chand Bansal, 253, Sector 7, Panchkula, Haryana-134109.

…..Opposite Parties No.1 to 3

 

4. Canara Bank, Branch Office at Sector 8, Madhya Marg, Chandigarh, through its Branch Manager.

....Opposite Party No.4

 

5.     Axis Bank Pvt. Ltd., SCO 134-135, Sector 34-A, Chandigarh.

 

….Opposite Party No.5

 

Argued by:-       Sh.Savinder Singh Gill, Advocate proxy of Sh.Dhawal Partap Singh Ahluwalia, Advocate for the complainant.

Ms.Neeru Sharma, Advocate proxy for Sh.Puneet Tuli, Advocate for opposite parties no.1 to 3. 

Opposite parties no.4 and 5 exparte.

 

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

Complaint No.	:	787 of 2016
Date of Institution	:	10.11.2016
Date of Decision	:	07.02.2017

 

Nitin Sood, care of OP Sood, resident of Prem Kuty, Ram Bazar Shimla, Himachal Pradesh.

…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.
2. BCL Homes Ltd., Village Kishanpura, NAC Zirakpur, District Mohali, Punjab, through its Directors Tajinder Bansal, Rajeev Kumar.
3. BCL Homes Ltd., through its Managing Director, Sh.Baldev Chand Bansal, 253, Sector 7, Panchkula, Haryana-134109.

…..Opposite Parties No.1 to 3

 

4. Canara Bank, Branch Office at Sector 8, Madhya Marg, Chandigarh, through its Branch Manager.

....Opposite Party No.4

 

5.     Axis Bank Pvt. Ltd., SCO 134-135, Sector 34-A, Chandigarh.

 

….Opposite Party No.5

 

Argued by:-       Sh.Savinder Singh Gill, Advocate proxy of Sh.Dhawal Partap Singh Ahluwalia, Advocate for the complainant.

Ms.Neeru Sharma, Advocate proxy for Sh.Puneet Tuli, Advocate for opposite parties no.1 to 3. 

Opposite parties no.4 and 5 exparte.

 

 

 

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

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we propose to dispose of the aforesaid two consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In both complaints, refund of the deposited amount, alongwith interest, compensation etc. has been claimed by the complainant(s), who are the original allottees. At the time of arguments, on 03.02.2017, it was agreed between Counsel for all the contesting parties, that, in view of above, these two complaints can be disposed of, by passing a consolidated order.

2.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.724 of 2016 titled as Rajesh Kumar Nagpal Vs. BCL Homes Limited and others.
3.         It is case of the complainant that being allured by the promises of opposite parties no.1 to 3, he opted to purchase a flat in a project, launched by them, under the name and style “Chinar Homes”, Kishanpura, Zirakpur, Mohali. He moved an application for allotment of a flat, on making payment of Rs.7.50 lacs, towards booking amount. He was informed that total price of the flat will come to Rs.37.50 lacs. By 22.03.2013, as per demands raised by opposite parties no.1 to 3, from time to time, the complainant, in all, had deposited an amount of Rs.33,86,588/-.
4.         Allotment letter Annexure C-2 was issued on 07.07.2011, qua 3BHK apartment bearing no.1005, measuring 2170 square feet of super area, 10^th floor, in Tower T-5, in the said project. To make aforesaid payment, the complainant had raised loan from opposite party no.5. Amount of loan was decided to be returned in 226 equal monthly installments @Rs.22,020/- per month. By making reference to document Annexure C-3, issued by opposite party no.5, it is stated that the complainant had been making payment towards monthly installments, regularly. Details showing amount of loan raised and payments made is also reflected in document Annexure C-3.

                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 opposite parties no.1 to 3, 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 07.10.2013, after providing all the basic amenities. It was further stipulated in Clause 9 that, in case, opposite parties no.1 to 3, 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.

5.         It is further case of the complainant that he had been regularly visiting the project site and was shocked to see that there was no sign of progress of construction. When possession of the unit was not delivered as per the stipulated date, the complainant made requests to deliver the same, however, he was given only false assurances. It was surprising to know that there was no internal development at the site. Further, the tower in which built-up unit was situated was also not complete. It is further case of the complainant that he also made visits to the site, in the years 2014 and 2015, but position remained the same. Request to make payment of compensation, on account of delay caused in handing over possession of the unit, was also not accepted by opposite parties no.1 to 3. When, grievance of the complainant was not redressed, he served legal notice dated 31.08.2016, seeking refund of the amount paid, with interest, compensation etc. but to of no avail. Copies of legal notice and dispatch receipt of the same, have been placed on record as Annexure C-4 (colly.).

                It is positive case of the complainant that as per information gathered by him, opposite parties no.1 to 3 had defaulted in making repayment of loan raised from opposite party no.4. The bank had gone to the Competent Forum, to recover the said amount. It is further case of the complainant that to secure his rights, he approached Debt Recovery Tribunal. To say that development is lacking, photographs taken in the year 2016, have also been placed on record as Annexure C-5. These photographs clearly indicate that the construction is not complete even by the time, when this complaint was filed. 

6.         By stating as above, it is prayed that directions be issued to opposite parties No.1 to 3, to refund the amount paid alongwith interest. Additional prayer has been made to issue directions to the opposite parties No.1 to 3 to pay the amount of rent @Rs.10,000/- per month, for the delayed period. Besides above, compensation for mental agony & physical harassment alongwith litigation expenses was also claimed.
7.         Notice was served upon the opposite parties.
8.         Despite deemed service, none put in appearance, on behalf of opposite parties no.4 and 5, as a result whereof, they were proceeded against exparte, by this Commission, vide order dated 16.01.2017.
9.         Opposite parties no.1 to 3 in their joint written reply 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. It was further stated that opposite parties no.1 to 3 have already appointed an Arbitrator in the matter, as such, consumer complaint is not maintainable. It was averred that the complainant has invoked the jurisdiction of Debt Recovery Tribunal, as such, he cannot be allowed to seek remedy under the Consumer Protection Act, 1986 (in short the Act). Territorial and pecuniary jurisdiction of this Commission was also disputed. It was averred that the complaint filed by the complainant is motivated one and is a result of malafide. It was stated that the complaint is bad for misjoinder and non-joinder of parties. It was also pleaded that the present complaint is barred by limitation. It was averred that since it was a simple transaction of sale and purchase of flat, by neither availing nor hiring any services as such, consumer complaint was not maintainable. In other words, it is said that only a Civil Court has jurisdiction to entertain and decide the present complaint.
10.         On merits, purchase of flat 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 also not disputed. It was averred that delay in delivery of possession of the unit occurred because the complainant defaulted in making payment of installments, as such, he is not entitled to compensation for the period of delay. It is further stated that possession of the unit, also could not be offered on account of force majeure circumstances i.e. non availability of sand and other building material. It was stated that even global slowdown in the real estate sector also affected opposite parties no.1 to 3. It is further stated that, as such, possession of the unit could not be offered, on account of circumstances, referred to above. It was averred that loan was raised from opposite party no.4/bank, however, the said bank had forged the documents and proceedings are going on to settle the said dispute. It was stated that land underneath the project stood mortgaged with opposite party no.4. An attempt has been made to shift delay caused, to the actions taken by opposite party no.4, to realize amount paid to opposite parties no.1 to 3. It was stated that all the approvals in respect of the project, in question, have been obtained from the Competent Authorities. Receipt of legal notice as also remaining averments were denied being wrong.
11.         The complainant and opposite parties no.1 to 3, led evidence, in support of their cases.
12.         Accordingly, we have heard the contesting parties and have gone through record of all the cases, very minutely, and are of the considered opinion, that both the complaints are liable to be partly accepted, for the reasons to be recorded hereinafter.
13.          First of all, we will deal with the objection raised by opposite parties no.1 to 3, 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 an admitted fact (para no.4 of the reply) that the Registered Office of opposite parties no.1 to 3 is situated at Chandigarh i.e. Shop No.140, Railway Road, Village Dariya, U.T., Chandigarh. This address can be found on various documents (Annexure C-1 colly., pages 20, 21 ,25, 26, and 27) placed on record. It is very significant to mention here that documents referred to above, are the payment receipts, meaning thereby the payments in respect of the unit, in question, was received by opposite parties no.1 to 3, at their Registered Office in Chandigarh. In view of above, it can easily be said that opposite parties no.1 to 3, which is a Company, is running its business from the said place at Chandigarh. Furthermore, since it is an admitted fact that payments towards the unit, in question, were received at Registered Office of opposite parties no.1 to 3, at Chandigarh, this Commission has territorial jurisdiction to entertain the present complaint, in view of principle of law laid down by Hon’ble National Commission in Ravinder Kumar Bajaj Vs. Parsvnath Developers Pvt. Ltd. & 3 Ors., First Appeal No.515 OF 2016, decided on 23.08.2016, wherein it was held as under:-

“Since in the Grounds of Appeal, a specific averment is made by the Appellant to the effect that in the year 2007, when the subject flat was booked, the Respondent Company did have a Branch office at Chandigarh, where the payments in respect of the project used to be received regularly, on a pointed query, learned Counsel appearing for the Company very fairly states, on instructions, that the stand of the Appellant is correct.

In light of the statement by learned Counsel for the Respondent Company, I am of the view that in the present case, the State Commission UT, Chandigarh has the Territorial Jurisdiction to adjudicate upon the Complaint filed by the Appellant”.

 

In view of above, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by opposite parties no.1 to 3, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

14.         Another objection taken by opposite parties no.1 to 3, with regard to pecuniary jurisdiction of the Commission, also deserves rejection. Total sale consideration of the unit, in question, was fixed at Rs.37.50 lacs. The complainant has sought refund of amount of Rs.33,86,588/-  alongwith interest @24% p.a. from the respective dates of deposits; compensation @Rs.10,000/- per month for the period of delay; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.51,000/-, aggregate value whereof fell above Rs.20 lacs and below Rs.1 crore. In any case, the aggregate value of the relief claimed, is not exceeding Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.
15.         Another objection was taken by opposite parties no.1 to 3, in their written version, that it is a simple transaction of sale and purchase of flat, by neither availing nor hiring any services, as such, consumer complaint was not maintainable.  

                It may be stated here that the complainant hired the services of opposite parties no.1 to 3, for purchasing the constructed unit, in question, and he was allotted the same for consideration. According to Clause 9 of the allotment letter, opposite parties no.1 to 3 were required to hand over possession of the unit, in question, 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 the same (allotment letter), after completing all the basic amenities, as provided in Clause 4 of the Allotment letter i.e. laying of roads, water lines, sewer lines, electric lines etc. A clear-cut promise was made by opposite parties no.1 to 3, vide Clause 4 of the Allotment Letter, for providing the services, referred to above. Neither the complainant purchased the unit, in an open auction, on “as is where is basis” nor it was a sale of flat only, without providing any service to him.  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 Act, provides an alternative remedy. Remedy provided under Section 3 of the Act, could be availed of by the complainant, as he falls within the definition of consumer. In this view of the matter, the objection  taken by opposite parties no.1 to 3, in their written version, being devoid of merit, must fail, and the same stands rejected.

16.         Further objection was taken by opposite parties no.1 to 3, in their written version, that the complaint filed by the complainant was barred by time.

                As stated above, according to 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, from the date of issuance of the same (allotment letter) i.e. on or before 07.10.2013. 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 by the complainant was refunded to him. There was, thus, a continuing cause of action, in favour of the complainant, to file the 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. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the opposite party/builder. It was known to the opposite party that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon`ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The objection taken by opposite parties no.1 to 3, in this regard, being devoid of merit, must fail and the same stands rejected.  

17.         An objection was also raised, by making reference to Clause No.22 of the Allotment Letter, that in the face of settlement of 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 feel that the argument raised is liable to be rejected.

                This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

“25.        The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

26.      To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

 

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

27.    It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

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

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

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

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

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

29.       In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

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

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

30.   Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

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

32.        We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

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

34.        Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

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

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

                As such, the plea taken by opposite parties no.1 to 3, in this regard, being devoid of merit, is rejected.

18.         Furthermore, in view of above, the plea taken by opposite parties no.1 to 3, to escape from the jurisdiction of this Commission, to the effect that they had appointed an Arbitrator to look into the dispute, in question, and as such, this consumer complaint is not maintainable, is also liable to be rejected. A similar plea taken by opposite parties no.1 to 3 was negated by this Commission, in a case titled as Deepak Gupta  Vs. BCL Homes Ltd. and ors., Complaint No. 557 of 2016, decided on 22.12.2016, while holding as under:-

“……….the proceedings under the Act are independent and existence of any Clause to settle dispute through Arbitration will not debar this Commission to entertain the complaint and grant an appropriate relief in case of deficiency in providing service and/or adoption of unfair trade practice, if proved on record on the part of the opposite party(s).”

19.         It is proved on record that the complainant purchased a built-up unit, referred to above, for an amount of Rs.37.50 lacs, in a project launched by opposite parties no.1 to 3. Allotment letter was issued in his favour on 07.07.2011. 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. If the physical possession is not taken over at site within 45 days of the issue of the possession letter, the Allottee shall pay watch and ward charges @0.1% of the total cost of the flat per month. Notwithstanding anything contained in this Agreement, if the allottee fails to take over possession of the said flat within six months from the date of issue of possession letter, even if other portions of Project are not complete or are in the course of construction the allotment would be liable for cancellation”.

 

20.         It is stipulated therein that possession of the unit, complete in all respects, after making necessary development in the project will be delivered to the complainant, within a period of 18 to 24 months, with a grace period of three months, from the date of issuance of allotment letter. However, if possession is not delivered within 27 months as committed, opposite parties no.1 to 3 were liable to pay an amount of Rs.10,000/- per month, for the period of delay.

                It is virtually admitted on record that till today, no offer has been made to hand over possession of the constructed unit by the opposite parties no.1 to 3 to the complainant. Rather perusal of documents, as also photographs placed on record depicts that the project is not complete and construction is virtually stopped at the site. 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.”

 

21.         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.
22.         As far as the plea taken by the opposite parties no.1 to 3 to the effect that delay took place on account of the reason that there was delay in making payment on the part of the complainant, it may be stated here that, in the first instance, no cogent and convincing evidence has been brought on record, in the shape of any copy of customer ledger or statement of account, pertaining to the account of the complainant, to prove that he was defaulter in making payment towards price of the said flat. It is very strange, that not even a single document, has been placed on record, alongwith reply filed by opposite parties no.1 to 3, to substantiate their stand. In the absence of any evidence, a bald plea taken by opposite parties no.1 to 3, in this regard, cannot be considered. Secondly, such a plea has no legs to stand, also in view of decision rendered by the National Commission, in a case titled as Puneet Malhotra Vs Parsvnath Developers Ltd., II (2015) CPJ 18 (NC), wherein under similar circumstances it was observed and held as under:-

“If some of the allottees had not made timely payment, it was for the opposite party to arrange the requisite finance either by taking loan or from its own resources or by liquidating Inventory at a lower price”.

 

                No help, therefore, can be drawn by the opposite parties no.1 to 3 out of the plea, raised by them, in this regard.

23.         Plea has also been taken by  opposite parties no.1 to 3, in their written version, to the effect that delay occurred also on account of shortage of building material such as sand etc., and on account of global slowdown in the real estate sector, meaning thereby that they had encountered force majeure circumstances.

                It may be stated here that as regards the alleged shortage of construction material like sand etc. in the market, nothing has been placed on record, by opposite parties no.1 to 3, to prove that they were unable to procure the said construction material, in adequate quantity. There is no evidence of opposite parties no.1 to 3 having invited tenders for supply of construction material and there being no response to such tenders. As such, bald stand of opposite parties no.1 to 3, taken in this regard is rejected.

                Now coming to the plea taken by opposite parties no.1 to 3 to the effect that possession of the unit, in question, could not be offered to the  complainant, by the stipulated date, on account of slowdown in the market of real estate. It may be stated here that, when opposite parties no.1 to 3 had already received substantial amount, referred to above, towards the unit(s), from the allottee(s), then it does not lie in their mouth, that they faced extreme financial hardship, due to recession or slowdown in the market, as far as the project, in question, is concerned. It is not that opposite parties no.1 to 3 were, in the first instance, required to develop the project, by arranging funds out of their own sources, and, thereafter, the units were to be sold to the allottees, on future payment basis. Had this been their case, only in those circumstances, the plea with regard to facing extreme financial hardship would have been considered to be correct, by this Commission. A similar plea for delay in delivery of possession of the units, was taken by a builder, before the Hon`ble National Consumer Disputes Redressal Commission, New Delhi, in  Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (alongwith three connected complaints),  decided on 14 Aug 2015,  which was rejected and the complaint was allowed in favour of the complainant. The principle of law, laid down, in the aforesaid case is fully applicable to be present case. In the present case also, opposite parties no.1 to 3 failed to convince this Commission, that they encountered force majeure circumstances, as a result whereof, delay in handing over possession of the unit occurred. As such, the stand taken by them, in this regard, is rejected. 

24.         As far as the objection taken by opposite parties no.1 to 3, to the effect that the complaint is bad for non-joinder and misjoinder of party(s), is concerned, it may be stated here that opposite parties no.1 to 3 failed to clarify, as to which party(s) was/were required to be added or deleted, in the head-note of the instant complaint. Such an objection taken by opposite parties no.1 to 3, in this regard, therefore, being without any justification, is rejected.
25.         Hard-earned money, deposited by the complainant, towards the unit, in question, was utilized by opposite parties no.1 to 3, for a number of years. Opposite parties no.1 to 3, by neither delivering physical 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 Rs.33,86,588/- alongwith interest @12% p.a., from the respective dates of deposits.

                In view of above act and conduct of opposite parties no.1 to 3 in neither delivering possession of the unit, nor refunding the amount with interest, 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.

26.         Prayer of the complainant for payment of rent amount @Rs.10,000/- per month, for the period of delay, cannot be accepted. Once this Commission is ordering refund of amount paid with interest, in the manner, referred to above, relief qua grant of rent amount cannot be granted. If it is granted, it would amount to giving double benefit to the complainant. Prayer made by the complainant, to this extent is rejected.
27.         It is necessary to mention here that no relief has been claimed against opposite parties no.4 and 5. Opposite party no.4 was impleaded as necessary party to the complaint, to show that project site and the construction raised thereon was mortgaged with opposite party no.4 by opposite parties no.1 to 3.  Whereas, opposite party no.5 was impleaded as a necessary party to the complaint to prove that the complainant had obtained loan from it, to make payment towards purchase of the said flat. Though, opposite parties no.4 and 5 were proceeded against exparte, however, at the time of arguments also, no relief was pressed against them. As such, the complaint against opposite parties no.4 and 5 is liable to be dismissed.
28.         No other point, was urged, by the contesting parties, in both the complaints.     
29.         For the reasons recorded above, both the complaints are partly accepted, with costs, as per the directions given hereunder.

Consumer complaint bearing no.724 of 2016. Opposite parties no.1 to 3 are jointly and severally directed as under:-

1. To refund the amount of   Rs.33,86,588/- 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.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. Complaint against opposite parties no.4 and 5 is dismissed with no order as to cost.

 

Consumer complaint bearing no.787 of 2016. Opposite parties no.1 to 3 are jointly and severally directed as under:-

1. To refund the amount of   Rs.33,86,588/- 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.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. Complaint against opposite parties no.4  and 5 is dismissed with no order as to cost.

 

30.         The aforesaid awarded amounts, in the manner mentioned in clauses (i) to (iii), shall be paid by opposite parties no.1 to 3/BCL Homes Limited, to the complainant(s), in both the complaints, within a period of 2 months, 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 (as ordered above), till realization and the amounts mentioned in clauses (ii) and (iii) shall carry interest @15% per annum, in both the complaints, from the date of filing of the respective complaints, till realization.
31.         However, it is made clear that, the concerned Bank from which, the complainants have availed loan facility shall have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
32.         Certified copy of this order be placed in connected complaint file, referred to above.
33.         Certified Copies of this order be sent to the parties, free of charge.
34.         The files be consigned to Record Room, after completion.

Pronounced.

07.02.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.

 

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint No.	:	787 of 2016
Date of Institution	:	10.11.2016
Date of Decision	:	07.02.2017

 

Nitin Sood, care of OP Sood, resident of Prem Kuty, Ram Bazar Shimla, Himachal Pradesh.

…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.
2. BCL Homes Ltd., Village Kishanpura, NAC Zirakpur, District Mohali, Punjab, through its Directors Tajinder Bansal, Rajeev Kumar.
3. BCL Homes Ltd., through its Managing Director, Sh.Baldev Chand Bansal, 253, Sector 7, Panchkula, Haryana-134109.

…..Opposite Parties No.1 to 3

 

4. Canara Bank, Branch Office at Sector 8, Madhya Marg, Chandigarh, through its Branch Manager.

....Opposite Party No.4

 

6.     Axis Bank Pvt. Ltd., SCO 134-135, Sector 34-A, Chandigarh.

 

….Opposite Party No.5

 

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

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

 

Argued by:-       Sh.Savinder Singh Gill, Advocate proxy of Sh.Dhawal Partap Singh Ahluwalia, Advocate for the complainant.

Ms.Neeru Sharma, Advocate proxy for Sh.Puneet Tuli, Advocate for opposite parties no.1 to 3. 

Opposite parties no.4 and 5 exparte.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

               

            Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.724 of 2016 titled as Rajesh Kumar Nagpal Vs. BCL Homes Limited and others, this complaint has been partly accepted with cost. 

2.         Certified copy of the order passed in consumer complaint bearing no.724 of 2016, be placed on this file.
3.         Certified copies of the main order, alongwith this order be sent to the parties, free of charge.
4.         The file be consigned to Record Room, after completion.

 

       

 

(DEV RAJ) MEMBER

(JUSTICE JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

Rg.