Chandigarh

StateCommission

CC/43/2016

Mr. Prabhujeev Singh Bajaj - Complainant(s)

Versus

Emaar MGF Land Ltd. - Opp.Party(s)

Sh. Sandeep Bhardwaj, Adv.

29 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	43 of 2016
Date of Institution	:	04.02.2016
Date of Decision	:	29.06.2016

 

Mr.Prabhujeev Singh Bajaj son of Sh.Inderpal Singh Bajaj, aged 40 years, House No.1501/2, Sector 43-B, Chandigarh-160022

……Complainant

V e r s u s

1. Emaar MGF Land Limited, (Mohali Hills), SCO 120-122, 1^st Floor, Sector 17-C, Chandigarh-160017, through its Managing Director/Director/Authorized Signatory.
2. Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director/ Director/Authorized Signatory.

              ....Opposite Parties No.1 and 2

3. HDFC Limited, SCO No.153-155, Sector 8C, Madhya Marg, Chandigarh, through its Branch Manager

....Proforma Opposite Party No.3

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

 

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

                MR. DEV RAJ, MEMBER.

 

Argued by:Sh.Sandeep Bhardwaj, Advocate for the complainant.

                 Sh.Sanjeev Sharma, Advocate for opposite parties no.1                  and 2

                 Ms.Rupali Shekhar Verma, Advocate for opposite party                  no.3.

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The facts, in brief, are that in the year 2007, opposite parties No.1 and 2 made a number of assurances through various newspapers and telemarketing with regard to launching of their integrated residential township under the name and style of Mohali Hills, Mohali, Punjab, having salient features.  The complainant selected residential plot no.112, measuring 400 square yards, Mohali Hills, Sector 109, Augusta Greens, SAS Nagar Mohali, Punjab, but he came to know that the same had already been sold to one Mr.Radhey Sham Goyal, however, he agreed to sell his plot to the complainant.  The earnest money already paid by Mr.Radhey Sham Goyal, was repaid by the complainant. Transfer of the said plot was effected in favour of the complainant, vide endorsement dated 26.09.2007, by opposite parties no.1 and 2. In this manner, all the rights and interests vested in favour of the complainant, as he stepped into the shoes of Mr.Radhey Sham Goyal, the original allottee.

2.         Plot Buyer's Agreement dated 18.06.2007, Annexure C-1 (in short the Agreement), in respect of the plot, was also endorsed in favour of the complainant. Total sale price of the plot was fixed at Rs.54,00,472/- which included Preferential Location Charges (PLC) and External Development Charges (EDC). The complainant opted for installment payment plan/payment schedule.
3.         It was stated that as per the installment payment plan, the complainant deposited the entire amount of Rs.54,00,472/-, in time, as a result whereof, he was extended  rebate @ 5% of the BSP, as is evident from the statement of account dated 01.07.2009 Annexure C-3 (colly.).  As per Clause 8 of the Agreement,   opposite parties no.1 and 2 were required to handover possession of residential plot within a maximum period of 3 years from the date of execution of that Agreement i.e. on or before 17.06.2010.
4.         It was averred that, the complainant in the years 2009 and 2010 visited the site, but did not find any  development there. Even basic amenities were not in existence. Requests made to   opposite parties no.1 and 2, to apprise with regard to development at the site and also delivery of possession of the unit, did not yield any result.  Ultimately, the representatives of opposite parties no.1 and 2 told the complainant that in the absence of some necessary approvals/clearances in respect of plot no.112, and also the land adjacent to it, being under some litigation, could not be acquired, as a result whereof the delivery of its possession is not at all possible.  Even, plot of similar size was not available with  opposite parties no.1 and 2, at the relevant time. Left with no alternative, the complainant sought refund of the deposited amount, but opposite parties no.1 and 2, flatly refused to do so.
5.         It was stated that, on the other hand, an option was given to the complainant, to relocate him, from plot No.112 to  plot Nos.1 and 2, measuring 300 square yards each i.e. (109-MLU-1-300 and 109-MLU-2-300) adjacent to each other, measuring total area of 600 square yards. An additional amount of Rs.11,500/- per square yard, for the difference of area, which comes to Rs.17,13,500/-, was demanded from the complainant. The complainant showed his inability to pay this amount and again requested opposite parties no.1 and 2 to refund the amount paid by him, towards the original plot no.112 but to no avail.  Under these circumstances, left with no choice, the complainant had to accept the proposal of relocation from original plot No.112 to plot Nos.1 and 2.
6.         Thereafter, vide email dated 10.04.2012 Annexure C-5, opposite parties no.1 and 2, confirmed the complainant that they have blocked unit nos.1 and 2 in Sector 109, as replacement option for plot no.112. To make payment towards the said replaced units, the complainant withdrew certain amount from his PF account, as also availed loan from HDFC and India Bulls.
7.         It was averred  that despite the fact that the complainant was relocated to plot Nos.1 and 2, in the manner, referred to above, and that too, under compelling circumstances, opposite parties no.1 and 2 intimated him, that two different agreements shall be executed for the said unit(s), to which he opposed but  of no result. Ultimately two Agreements were got signed from him. It was told by the representatives of opposite parties no.1 and 2 that the excess payment made towards the original plot No.112 would be adjusted in the newly relocated plots. It was stated that, thus, opposite parties no.1 and 2 started separate correspondence with regard to plot nos. 109-MLU-1-300 and 109-MLU-2-300, which were the result of relocation, in lieu of original plot/old plot no.112.
8.         Opposite parties No.1 and 2 got executed Amended Agreement dated 21.06.2012 Annexure C-9, in respect of plot no.109-MLU-1-300, wherein, its total sale consideration was fixed at Rs.40,50,354/- including PLC. Except change of no. of plot, all other terms and conditions contained in the original Agreement, well kept intact.  It was stated that amended agreement in respect of plot no.109-MLU-2-300 was not got executed by opposite parties no.1 and 2, despite request having been made by the complainant. It was further stated that, on the other hand, opposite parties no.1 and 2, got  executed fresh Plot Buyer’s Agreement dated 19.11.2012 Annexure C-12,  in respect of plot no.109-MLU-2-300, under the threat of cancellation of unit, in case, he did not sign the same.  As per the new payment plan, cost of plot no.109-MLU-2-300 was fixed at Rs.38,36,152.12Ps. including EDC and PLC. 
9.         It was further stated that, in this manner, the total cost of relocated plots bearing nos.109-MLU-1-300 and 109-MLU-2-300, was fixed at Rs.78,86,506.12Ps. i.e. (Rs.40,50,354/- plus (+) Rs.38,36,152.12Ps.), which was paid by the complainant, by 10.04.2013. On the other hand, possession of the units were not delivered to the complainant. It also came to the knowledge of the complainant, that the land adjacent to his unit(s) was still to be acquired, and is under litigation, on account of some dispute between the farmers and  opposite parties no.1 and 2.
10.         It was further stated that thereafter, opposite parties no.1 and 2, issued letters dated 25.08.2014 Annexure C-18 and 07.11.2014 Annexure C-20, in respect of plot nos.109-MLU-2-300 and 109-MLU-1-300, wherein an illegal demand of Rs.12,57,530/-  and Rs.7,53,242/-  respectively, was  made by opposite parties no.1 and 2, from the complainant. However, on receipt of the said letters, when the complainant visited the site to see the progress of development, he was surprised to see the same missing. Even basic amenities were not in existence there. The entries to the project were sealed by the Forest Department. On the other hand, despite above fact i.e. want of basic amenities such as roads, electricity, water, sewerage, storm water etc. etc., the complainant was asked to take possession of the units. Left with no alternative the complainant sent number of emails for the period from 11.11.2014, to 03.12.2015, in the matter, but no response was received.
11.         It was further stated that the aforesaid acts of  opposite parties no.1 and 2 , amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking refund of the deposited amount, alongwith interest, compensation and litigation expenses.
12.         The complaint was admitted on 08.02.2016 and notice thereof was ordered to be issued to the  opposite parties, for 01.03.2016. On 01.03.2016, Counsel for opposite parties no.1 to 3, put in appearance and sought time for filing written reply and evidence. The complaint was adjourned to 23.03.2016, for the said purpose. On that date, reply and evidence, on behalf of opposite party no.3 was filed, however, opposite parties no.1 and 2, sought further time for the same. The complaint was thereafter, adjourned to 08.04.2016,  in between, an application was moved by opposite parties no.1 and 2, under Section 8 (amended) of the Arbitration and Conciliation Act, 1996, for referring the matter to the Arbitration, which was taken up on 05.04.2016. The said application was disposed of, by this Commission, holding that the question qua arbitration will be considered at the time of final arguments, in the main complaint. There was no challenge to the said order. Ultimately, reply and evidence was filed by opposite parties no.1 and 2, on 08.04.2016.
13.         Opposite Parties No.1 and 2, in their joint written version, pleaded that in the face of existence of an 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. It was averred that the complainant did not fall within the definition of a “consumer” as defined under Section 2(1)(d) of the Act, as he had purchased the plot(s), in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. Pecuniary Jurisdiction of this Commission was also disputed. It was pleaded that since possession of plot no.112 was to be delivered on 17.06.2010, as such, the complaint having been filed on 04.02.2016, was palpably barred by time.
14.         Purchase of plot No.112, in the first instance, by the complainant and thereafter, relocation to plot nos.1 and 2, is not disputed. It was averred that, infact, the complainant was interested in purchase of two plots, as a result whereof, the said relocation was done. Payments made by the complainant, are not disputed. It was admitted that, as per Clause 8 of the Agreement,  possession of the plot, in question, was proposed to be delivered to  the  complainant, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement). It was further stated that the amount of compensation/penalty, for the period of delay, has already been credited to the account of the complainant, maintained by them. It was further stated that opposite parties no.1 and 2 were in possession of all the necessary permissions, before possession of the plots, in question, was offered to the complainant. It was further stated that opposite parties no.1 and 2 were exempted from the provisions of the Punjab Apartment and Property Regulation Act, 1995, and, as such, completion certificate was not required to be obtained, at the time of offer or delivery of possession of the plot, in question. It was further stated that, no doubt, there was some delay, in the delivery of possession of the units, in question, yet, when the same was offered to the complainant, on the dates aforesaid, upon completion of the amenities, he did not accept the same, for the reasons best known to him, as a result whereof, he is liable to pay holding charges. It was further stated that, in case, the complainant still wanted refund of the amount deposited, the same would amount to surrender of the units, and would attract forfeiture charges. It was further stated that neither there was any deficiency, in rendering service, on the part of opposite parties no.1 and 2, nor they had indulged into unfair trade practice. The remaining averments, were denied, being wrong.
15.         Opposite party no.3, in its written statement, admitted that the complainant had availed of loan from it, for making payment towards the said unit. It was pleaded that, in case, this Commission, comes to the conclusion that the complainant is entitled to refund of the amount deposited, opposite party no.3 shall have first charge/right, to seek apportionment of its dues. It was stated that complainant qua opposite party no.3, is liable to be dismissed, as neither deficiency in rendering service and adoption of unfair practice has been proved against it, nor any allegation with regard to the same has been leveled by the complainant.
16.         In the rejoinder filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of  opposite parties no.1 and 2 .
17.          The parties led evidence, in support of their case. 
18.         We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.   
19.         The first 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.

                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.”

20.         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.”

21.         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.
22.         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.”

23.         Now it is to be seen, whether, after making 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, this Commission has 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.

24.         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.
25.         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 entire life savings to get a unit, to have a roof over his head. 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. In the present case, the complainant is claiming refund of Rs.76,56,145/- alongwith interest, compensation and litigation costs, aggregate value whereof, if added may be near about Rs.1 crore. In that event, the complainant will be forced to pay an amount of Rs.1,68,750/-  towards his 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.
26.         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 a unit, in a housing project, launched by opposite parties no.1 and 2. However, his hopes were shattered, when despite making payment of entire amount towards price, he failed to get possession of a plots, 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.
27.         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.”

                In view of the above, the argument raised by Counsel for opposite parties no.1 and 2, 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.

28.         The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. No doubt, to defeat claim of the complainant, an objection was raised by opposite parties no.1 and 2, to the effect that the complainant, had purchased the plot, in question, for earning profits, as and when there is escalation in the prices of real estate, as such, he would not fall within the definition of consumer, as defined under Section 2(1)(d) of 1986 Act. It may be stated here that there is nothing, on the record to show that the complainant is a property dealer and he has been in a commercial business of selling properties. On the other hand, in para no.1 of the complaint, it has been clearly averred by the complainant that he had purchased the said unit(s), for his residential purpose. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose.  Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. Under these circumstances, by no stretch of imagination, it can be said that the plot(s), in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  opposite parties no.1 and 2, in their written statement, therefore, being devoid of merit, is rejected.  
29.         The next question, that falls for consideration, is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the complainant has sought refund of the amount of Rs.76,56,145/-, paid by him, towards price of the said plots, alongwith interest, from the respective dates of deposits, till realization; compensation to the tune of Rs.6 lacs, for mental agony, physical harassment, unfair trade practice and escalation in prices of real estate; and cost of litigation, to the tune of Rs.1 lac, aggregate value whereof [excluding the interest claimed] came to be around Rs.83,56,145/-, and, as such, fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection, taken by opposite parties no.1 and 2, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

                As far as the interest claimed by the complainant, on the deposited amount is concerned, in the first instance, it is submitted that only a suitable interest has been claimed by him. On the other hand, had the complainant asked interest at any rate, on the amount deposited, even then, it was not to be added to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken in to consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Recently, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided On 08 Mar 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principle of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the submission of Counsel for opposite parties no.1 and 2, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

30.         The next question, that falls for consideration, is, as to within which period, possession of the original plot no.112, was to be delivered to the complainant. As stated above, according to Clause 8 of the Agreement dated 18.06.2007,  opposite parties no.1 and 2 were required to handover possession of the said plot within a maximum period of 3 years i.e. on or before 17.06.2010.  Admittedly, in the present case, possession of the said unit, in question, was not delivered to the complainant, by the stipulated date, for want of basic amenities, as has been admitted by opposite parties no.1 and 2, in para no.9 of their written version wherein it has been clearly stated that “since infrastructure work was still not completed for the unit allotted to the complainant, hence the possession was not offered”. The Hon’ble Supreme Court of India, in Lucknow Development Authority vs M.K. Gupta, 1994 SCC (1) 243, held that if a builder fails to deliver possession of the property by the stipulated period, the delay so caused is denial of service and such deficiencies or omissions tantamount to unfair trade practice. Thus, it could very well be said that the act of non-delivery of possession of unit no.112, by the stipulated date, in the absence of any force majeure circumstances, is a material deficiency on the part of opposite parties no.1 and 2.

                Admittedly, when possession of plot no.112, was not delivered to the complainant, by the stipulated date i.e. 17.06.2010, for want of infrastructure work and basic amenities, he was given an option for relocation to 109-MLU-1-300 and 109-MLU-2-300. The complainant gave his consent for relocation vide email dated 10.04.2012. In response to the said email, the complainant was relocated to plot nos.109-MLU-1-300 and 109-MLU-2-300, adjacent to each other measuring total area of 600 square yards, as is evident from email dated 11.04.2012 Annexure C-6, wherein opposite parties no.1 and 2, intimated as under:-

“Hello Mr. Bajaj,

We have blocked unit nos 1&2 in sector-109 for you as replacement option for plot no 112 AG SECTOR-109.”

 

31.         However, the main grouse of the complainant is that, despite relocation to the said units, even then, actual physical possession thereof, was not offered to him, whereas, on the other hand, paper offer was made to him, vide letters dated 25.08.2014 and 07.11.2014, because when he visited the site after receiving the said letters, to see development and basic amenities, the same were found missing and besides  that, all entry points of the project, had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/sanction from it. Thus, in these circumstances, the principal question, which goes to the root of the case, and falls for consideration, is, as to whether, offer of possession made by opposite parties no.1 and 2, to the complainant, vide letters dated 25.08.2014 and 07.11.2014, in respect of the relocated units, could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder/opposite parties no.1 and 2. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by opposite parties no.1 and 2, to prove that when offer was made to the complainant, in respect of the units, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for opposite parties no.1 and 2, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. Opposite parties no.1 and 2 were also required to produce on record, a copy of the Completion Certificate (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to do so. It is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer.

                Secondly, the complainant has placed on record, copies of the RTI Information, relating to the said project, in question. Vide RTI Information dated 29.04.2014 Annexure C-31, it was clearly intimated by Greater Mohali Area Development Authority (GMADA), that opposite parties no.1 and 2, had not even applied to them for commission of sewerage treatment plant, water supply, electricity etc. Not only this, it is further evident from  RTI Information dated 26.02.2015 Annexure C-30, issued by the Punjab State Power Corporation Limited (PSPCL), that no regular electricity connection has been released in the sector, in question, wherein the plots are situated. The said RTI Information goes unrebutted by opposite parties no.1 and 2. Not even a single document has been brought on record to prove that the information relating to non-existence of basic amenities, mentioned in the said RTI Information is false, or that the said information was fabricated by the complainant. Had the said information been false or fabricated, opposite parties no.1 and 2, could have obtained certificate from the said Authorities, to say that the same had not been supplied from their Department, but they (opposite parties no.1 and 2) failed to do so. Thus, it could safely be said that the complainant has proved his case, that opposite parties no.1 and 2 did not even obtain permission to provide basic amenities such as water, electricity etc., till  29.04.2014 or 26.02.2015, the dates when RTI information aforesaid, was issued by the Authorities concerned.

                Not only this, it is also an admitted case, that entry points of the project had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/ sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2), in paragraph No.26 of their written version. Not only this, the said fact is further corroborated from the letter dated 15.04.2015 Annexure-4 (at page 190 of the file), sent by opposite parties no.1 and 2, to the Chief Administrator, GMADA, requesting it to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by opposite parties no.1 and 2, in the said letter that “…….we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. This admission of the opposite parties no.1 and 2, in the letter dated 15.04.2015 written to the Chief Administrator, GAMDA, itself clearly goes to prove that even till that date (15.04.2015), they  were not in a position, to deliver possession of the plot(s) to their customers, including the complainant, in the said project, on account of reason that the entries thereof  had been sealed by the Forest Department, stating it to be an “illegal access through the Forest Strip”, permissions/sanction, whereof has not been obtained by them. Not even a single piece of evidence has been brought on record, to prove that the said entry points have been got reopened by opposite parties no.1 and 2, after having obtained permission from the Authorities concerned. If it is so, then it remained unclarified by opposite parties no.1 and 2, as to when entry points of the project were sealed, how could they offer possession of the units, to the allottees, including the complainant, in the year 2014.

                A plea was also taken by opposite parties no.1 and 2 that only recently the Forest Department has served notice on them, alleging illegal access created by them, through the Forest land. To the contrary, perusal of RTI Information dated 05.05.2015 Annexure C-28 (colly.) (at pages 120 to 127 of the file) issued by the Government of Punjab, reveals that a court case with regard to dispute between the Forest Department and opposite parties no.1 and 2, is pending litigation before the Civil Court Kharar, since 03.07.2012, as opposite parties no.1 and 2 have violated Sections 29,33 and 63 of the Indian Forest Act 1927 and have also violated the directions passed by the Hon'ble Supreme Court of India, vide order dated 12.12.1996. The said RTI Information also goes unrebutted by opposite parties no.1 and 2. Thus, the matter with regard to entry points aforesaid, in respect of the said sector, in dispute, was an old dispute, between the Forest Department and opposite parties no.1 and 2, as they had not taken permission from the Competent Authorities, which fact was not disclosed by them, in their written version, filed before this Commission. 

                In view of above, it is held that the act of opposite parties no.1 and 2, in offering paper possession of the units, in question, vide letters 25.08.2014 and 07.11.2014, in the absence of development work; basic amenities at the site; non-obtaining of completion certificate, and also entry points of the project being sealed/closed by the Forest Department, amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the offer of possession made by opposite parties no.1 and 2, vide letters dated 25.08.2014 and 07.11.2014 is nothing, but a paper possession, which is not sustainable, in the eyes of law.

32.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It may be stated here that since it has been frankly admitted by opposite parties no.1 and 2, in number of paragraphs of their written statement that offer of possession of the plot(s) (which has been held to be paper possession), sold to the complainant, in the manner explained above, was made for the first time on 25.08.2014 and thereafter on 07.11.2014, he could file the complaint, within 2 years, from those dates, as such, even if the date 25.08.2014, is taken as first cause of action according to opposite parties no.1 and 2, the complaint having been filed on 04.02.2016,  is filed within the limitation, as prescribed under 1986 Act.

                Not only this, since it has been held by this Commission, that offer so made by opposite parties no.1 and 2, was nothing but a paper possession, and till date the complainant  is empty handed as neither actual physical possession of the plots was delivered, for want of development work; basic amenities at the site, as also the entry points had been sealed by the Forest Department, as they  failed to take requisite permissions/sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2), in their written version nor amount deposited was refunded to him alongwith interest, as such, there is continuing cause of action, in favour of the complainant, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). 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 submission of the Counsel for  opposite parties no.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.

33.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of amount of Rs.76,56,145/-, deposited by him, towards the price of said plot(s). It may be stated here, that, in the first instance, it has been proved on record, and also an admitted fact that opposite parties no.1 and 2 have failed to discharge their part of the contract in not offering possession of the plots, in question, within the stipulated time for want of development and basic amenities and development at the site. Thus, this was a material deficiency, in rendering service, on the part of opposite parties no.1 and 2.

                Secondly, as stated above, when possession, for the first time was offered, on 25.08.2014 and 07.11.2014  i.e. after a delay of about more than four years, that too, was illegal, as held above, because  opposite parties no.1 and 2  have not taken requisite permissions/sanctions from the Forest Department, as a result whereof, entry points of the project have been sealed, stating to be “illegal access”, which fact is apparent from the letter dated 15.04.2015, referred to, in earlier part of this order.  Thus, in these circumstances, mere offer of paper possession of plot(s), vide letter dated 25.08.2014 and 07.11.2014, will not disentitle the complainant, to claim refund of amount deposited by him. Even otherwise, if it is assumed for the sake of arguments (though not proved) that had possession of the plot in question, offered to the complainant, vide letter dated 25.08.2014 or 07.11.2014 i.e. after a delay of about four years was genuine, even then the complainant was not bound to accept the same. It is well settled law that non-delivery of possession of the property sold by a builder, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not case of opposite parties no.1 and 2 that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other legal and valid reason. No plausible reason has been assigned by opposite parties no.1 and 2, as to why they failed to deliver possession of the unit, by the stipulated date. Delay could only be condoned, under the terms and conditions of the Agreement, if there exists any plausible reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon'ble National Commission, held as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

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

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

34.         In view of the above, it is held that since there was a material violation on the part of  opposite parties no.1 and 2, in not handing over possession of the units, in question, by the stipulated date, as mentioned in the Agreement, and that too when the offer was made, there was no development at the site, as also basic amenities were not in existence, the complainant was at liberty, not to accept the offer made and on the other hand, was right in seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint. Opposite parties no.1 and 2, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the plots, in question. In our considered opinion, the complainant is entitled to the refund of amount of Rs.76,56,145/-, deposited by him, towards price of the said plot, because he was  caused financial loss.  
35.         Hard-earned money, deposited by the complainant, towards the plots, in question, was utilized by opposite parties no.1 and 2, for a number of years. In case of delay, in deposit of installment(s),  opposite parties no.1 and 2  had been charging interest @15% P.A., compounded at the time of every succeeding installment, from the complainant, as per Clause 3 of the Agreement. It is, therefore, held that  opposite parties no.1 and 2 , by neither delivering physical possession of the plots, in question, complete in all respects, by the stipulated date, nor refunding the 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.76,56,145/-, alongwith interest compounded quarterly @15%, from the respective dates of deposits.

                In view of above facts of the case, opposite parties no.1 and 2 are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.

36.         As far as the plea taken by opposite parties no.1 and 2, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (opposite parties no.1 and 2) case, that they were ready with possession of the constructed unit, to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some inevitable circumstances/financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of opposite parties no.1 and 2, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by opposite parties no.1 and 2, in this regard, has no legs to stand and is accordingly rejected.
37.         No other point, was urged, by the Counsel for the parties.
38.         For the reasons recorded above, the complaint is partly accepted, with costs.  Opposite parties no.1 and 2  are jointly and severally held liable and directed as under:-
    1. To refund the amount of  Rs.76,56,145/-, to the complainant, alongwith interest compounded quarterly @15%,  from the respective dates of deposits, onwards.
    2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant,
    3.  To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant.
    4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made by opposite parties no.1 and 2, to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, they (opposite parties no.1 and 2) shall be liable to pay the amount mentioned at sr.no.(i), alongwith penal interest @ 18% compounded quarterly instead of @15%, and interest @15%,  compounded quarterly, on the amount mentioned at sr.no. (ii) and (iii), from the date of filing of this complaint, till realization.
39.         However, it is made clear that, in case, the complainant has availed loan facility from any banking/financial institution(s), it shall have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
40.         Complaint qua opposite party no.3, is dismissed, with no order as to costs, as neither deficiency in rendering service and adoption of unfair practice has been proved against it, nor any allegation with regard to the same, has been levelled by the complainant.
41.         Certified Copies of this order be sent to the parties, free of charge.
42.         The file be consigned to Record Room, after completion.

Pronounced.

29.06.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Rg.