Chandigarh

StateCommission

CC/899/2016

Dinesh Patiyal - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Mahesh Dheer, Adv.

12 Jun 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	899 of 2016
Date of Institution	:	09.12.2016
Date of Decision		12.06.2017

 

1. Dinesh Patiyal S/o Mr. Ratan Chand Patiyal, Resident of VPO Bhaura, Tehsil Palampur, Distt. Kangra, 176087, Himachal Pradesh.
2. Rakesh Patiyal S/o Mr. Ratan Chand Patiyal, Resident of VPO Bhaura, Tehsil Palampur, Distt. Kangra, 176087, Himachal Pradesh.

 

 

……Complainants

V e r s u s

 

Emaar MGF Land Limited, Corporate Office 1^st Floor, SCO No.120-122, Sector 17-C, Chandigarh – 160017.

 

              ……Opposite Party

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

 

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

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

               

Argued by:Sh. Mahesh Dheer, Advocate for the Complainants.

                 Sh. Ashim Aggarwal, Advocate for the Opposite Party.

 

       

PER PADMA PANDEY, MEMBER

 

                This complaint has been filed by the complainants, seeking compensation for the period of delay, in handing over possession of plot bearing  No.104-EP-135-250, purchased by them, in resale, from Mr. Vijay Kumar Uppal and Ms. Divya Uppal (original allottee), for an amount of Rs.52,34,000/-, in the project of the opposite party, namely “Mohali Hills”, Sector 104, SAS Nagar, Mohali, possession whereof had been taken by them, on 10.12.2014. The main grievance of the complainants is that since as per Clause 8 of the Buyer’s Agreement (in short the Agreement) dated 31.12.2011, possession of the developed plot was to be handed over to them, latest by 30.12.2012, but it was ultimately handed over on 10.12.2014, vide document Annexure C-3 i.e. after a delay of about 2 years, as such, the opposite party is liable to pay compensation for the period of delay @Rs.50/- per square yard per month. However, when request was made to the opposite party, for payment of the compensation amount, it refused to do so.  Hence, this complaint.

2.         In the reply filed, purchase of the plot, in question, in resale, by the complainants; execution of the buyer’s agreement; amount paid by the complainant as mentioned in the complaint; and delivery of possession of the said plot vide letter dated 10.12.2014 instead of 30.12.2012, has not been disputed by the opposite party. It was stated that in view of Section 8 of the Arbitration and Conciliation Act, 1996 [as amended vide the Arbitration and Conciliation (Amendment) Act, 2015] , to settle disputes between the parties, the matter is required to be referred to an Arbitration, as such, this Commission has no jurisdiction to entertain the same (complaint). It was pleaded that this Commission has got no territorial and pecuniary Jurisdiction, to entertain and decide the complaint. It was further stated that the complainants are subsequent purchasers and at the time of purchase of plot, in resale, they, vide undertaking dated 25.02.2014 and also vide possession letter dated 10.12.2014, have waived of their right, for the compensation, which has now been claimed by them, by way of filing the present complaint. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
3.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite party.
4.         The parties led evidence in support of their case.
5.         We have heard Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
6. The first question that falls for consideration is, as to whether, the complaint filed by the complainants, is maintainable before this Commission or not. First coming to the territorial jurisdiction, it is submitted that since the buyer’s agreement in respect of the plot, in question, was executed at Chandigarh, as is evident from page 21 of the file, this Commission has got territorial jurisdiction to entertain the complaint.
7. Now coming to the pecuniary jurisdiction, it is submitted that according to Section 17 of the Act, the State Commission shall have jurisdiction to entertain the complaints, where the value of the goods or services and compensation, if any claimed, exceeds Rs.20 lacs but not exceeds Rs.1 crore. Similar view was taken by larger Bench of the Hon’ble National Commission, in a case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  In view of above, the total value of the plot, in question i.e. Rs.52,34,000/- and also the relief claimed by the complainants in the present case, if taken into consideration, will definitely fall above Rs.20 lacs and below Rs.1 crore. As such, this Commission has pecuniary jurisdiction to entertain and decide the complaint.
8. As far as the objection of the opposite party, to the effect that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication, is concerned, it may be stated here that 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, wherein, it has already been held that . 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.”

               

9. In view of the above, the plea taken by the opposite party to the effect this Commission, lacks territorial and pecuniary jurisdiction and also that the complaint needs to be referred to an arbitrator, being devoid of merit is rejected.
10. Admittedly, possession of the plot, in question, was taken over by the complainants, vide letter dated 10.12.2014. No doubt there was delay of about two years, in handing over possession of the plot, in question, however, the moot question, that falls for consideration, is, as to whether, the complainants are entitled for compensation for period of said delay, in handing over possession of the plot, in question, or not. Admittedly, the complainants had purchased the plot, in question, in resale, from the original allottees, referred to above. At the time of purchase of the plot, in resale, an Indemnity-cum-Undertaking dated 25.02.2014 was given by the complainants, in favour of the opposite party, wherein at Clause 2, they have agreed that they (complainants) will not press any compensation, for the period of delay in handing over possession of the plot, in question. Relevant contents of the said document, placed on record by the complainants themselves read thus:-

“2. The Indemnifier having been appraised, understands and confirms that being the Nominee/Transferee, he/she is not entitled to claim any compensation for delay in handing over possession or rebate under a scheme or otherwise or any other discount by whatever name from the Company and hereby undertakes not to raise any claim whatsoever with regard to the same from this Company, for which the original Applicant/Allottee might have entitled”.

 

11.  The contents of undertaking referred to above, makes it very clear that the complainants were well aware of the delay, being caused by the opposite party, at the relevant time, in handing over possession of the plot, in question. However, despite that, out of their own free will, they agreed, that they will not claim any compensation for delay in handing over possession or rebate, under a scheme or otherwise or any other discount, by whatever name from the Company and will also not raise any claim, whatsoever with regard to the same, from the opposite party, for which the original Applicant/Allottee were entitled.  If it is so, it is now not open to the complainants, to ask for that claim, which they have waived off, by way of execution of the undertaking, referred to above.
12. Not only as above, even in the letter dated 10.12.2014 Annexure C-3, vide which possession of the plot was admittedly taken over by the complainants, they have certified/agreed that since they have taken peaceful possession of the plot, in question, the liabilities and obligation of the opposite party, as enumerated in the agreement, stood satisfied. 

                At the same time, it is not the case of the complainants that their signatures on the said undertaking and also on the letter dated 10.12.2014, were obtained by the opposite party, under duress or coercion. It is also not the case of the complainants that the said documents were signed by them, under protest, reserving their legal right, to claim compensation for the period of delay, in handing over possession of the plot, in question. Under these circumstances, the complainants have no right to claim the relief, which they have waived off, out of their own volition, by way of executing the documents, referred to above. The complaint filed by the complainants on 09.12.2016, i.e. just one day before the expiry of limitation period i.e. from 10.12.2014 (when possession was taken over), is nothing but an afterthought, which is not sustainable in the eyes of law.

13. For the reasons recorded above, it is held that the complaint filed by the complainants does not merit acceptance, and is dismissed, with no order as costs.
14. Certified Copies of this order be sent to the parties, free of charge.
15. The file be consigned to Record Room, after completion.

Pronounced.

12.06.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

                                                                                 

       

                                                 Sd/-

                             

[DEV RAJ]

MEMBER

                                                                                    

    

Sd/-

                                                                             

[PADMA PANDEY]

 MEMBER

 

 

Rg