Chandigarh

StateCommission

CC/115/2018

Pritam Singh Natt - Complainant(s)

Versus

Emaar MGF Land Ltd - Opp.Party(s)

Savinder Singh Gill Adv. & Hoshiar Chand Adv.

07 Aug 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	115 of 2018
Date of Institution	:	14.03.2018
Date of Decision	:	07.08.2018

 

1. Pritam Singh Natt s/o Sh.Balwant Singh r/o Village Rajoana Khurd, Tehsil Raikot, District Ludhiana, Punjab, currently residing in 122, Conway Road, Southgate London, N14 7BG, United Kingdom.
2. Tejinder Singh Natt s/o Sh.Pritam Singh, r/o Village Rajoana Khurd, Tehsil Raikot, District Ludhiana, Punjab, currently residing in 122, Conway Road, Southgate London, N147BG, United Kingdom, through his Power of Attorney Holder, Pritam Singh Natt s/o Sh.Balwant Singh r/o Village Rajoana Khurd, Tehsil Raikot, District Ludhiana, Punjab, currently residing in 122, Conway Road, Southgate London, N147BG, United Kingdom.

……Complainants

V e r s u s

 

1. Emaar MGF Land Ltd., Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, through its Managing Director Sh.Shravan Gupta.

Also at ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through its CEO Sh.Sanjay Malhotra.

2. Sh.Shravan Gupta, Director of Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001.
3. Sh.Sanjay Malhotra, CEO of Emaar MGF Land Ltd., Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali.

              .... Opposite Parties

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

 

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

                MRS. PADMA PANDEY, MEMBER.

 

Argued by: Sh.Hoshiar Chand, Advocate for the complainants.

                  Sh.Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

                The complainants have filed this complaint, seeking refund of amount of Rs.45,88,561/- paid by them, to the opposite parties, towards apartment bearing no.TVM F1-F05-502, measuring 1550 square feet, reallotted to them, in the project named “The View at Mohali Hills”, Mohali, Punjab, in lieu of earlier allotted apartment No.TVM C2-F05-501. It was stated that despite the fact that the complainants had paid an amount of Rs.45,88,561/-, from time to time, as per demands raised by the opposite parties, against total cost of Rs.48,93,167/-, they (opposite parties) failed to deliver possession thereof, by the stipulated date i.e. within a period of 36 months from the date of allotment, as provided in Clause 21.1 of the Agreement dated 24.03.2008. The end date to hand over possession of the initially allotted unit, expired on 23.03.2011. It was further stated that deficiency in providing service on the part of the opposite parties is writ large, as, it was only after five years of booking of initial apartment, that the opposite parties showed their inability to deliver possession thereof, for want of construction and on the other hand, possession of even relocated unit was also not offered and delivered to the complainants, for want of construction and basic amenities. Requests made by the complainants for redressal of their grievance were not acceded to, by the opposite parties. Hence by way of filing this complaint, the complainants have sought directions to the opposite parties,  to refund the entire amount paid, alongwith interest, compensation etc. 

2.         Upon notice, joint written reply was filed by the opposite parties, wherein, many objections were raised like that in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitrator, this Commission has no jurisdiction to entertain the consumer complaint; the complainants being NRI and also the fact that they are the owners of house at Mohali, are investors, as such, they did not fall within the definition of “Consumer” as defined under Section 2 (1) (d) of the Act; this Commission did not vest with territorial and pecuniary jurisdiction; requisite court fee has not been paid by the complainants; power of attorney filed is defective; complainants were defaulters in making payment towards price of the unit; the complaint filed is time barred; and this complaint is not maintainable as the complainants have already filed a complaint before the NRI Commission, in respect of the unit, in question. The objection with regard to Arbitration aforesaid, has also been taken separately, by the opposite parties, by moving application, in this complaint, in which arguments were heard on 30.07.2018, alongwith this complaint and reserved for orders.  
3.         It was stated that since construction of the tower, in which, the complainants were initially allotted unit bearing No.TVM-C2-F05-501, could not be started, as such, they were relocated to unit no.TVM-F1-F05-502, to which, no objection was raised by them, at the relevant point of time. Payments made by the complainants are not denied.
4.         It was averred that, as per Clause 21.1 of the Agreement, it was agreed to between the parties, that the Company only ‘proposes’ to make endeavor to deliver possession of the unit, within a period of 36 months, from the date of allotment. Since, no definite period was committed to hand over possession of the unit, and also the unit, in question, falls under the category of immovable property, as such, time was not the essence of contract. It was stated that it was well within the knowledge of the complainants that for any delays, stipulated penalty has been provided in the Agreement, which safeguarded their rights. It was fairly admitted that there was delay, on the part of the opposite parties, in not handing over possession of the relocated unit even. It was averred that work is going on, in full swing, and on completion thereof, the opposite parties will apply for occupation certificate to the competent Authorities. It was stated that possession of the relocated unit will be handed over to the complainants, on receipt of occupation certificate.  It was further stated that the opposite parties have obtained partial completion certificate, in respect of other towers of the project, in question. It was further stated that, in case, the complainants still wanted refund of the amount deposited; the same would amount to surrender of the unit, and would attract forfeiture charges. It was pleaded that  opposite party no.3 is no more the CEO of the Company. It was further stated that opposite parties no.2 and 3 have been wrongly impleaded in this complaint. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite parties, nor they had indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite parties.
6.         The parties led evidence in support of their case.
7.         We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully.
8.         First, we will deal with an objection, raised by the opposite parties, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

                It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha  (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

                In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit is rejected.

9.         It is not in dispute that, initially, vide letter dated 11.03.2008, the complainants were allotted unit bearing No.TVM C2-F05-501, measuring 1350 square feet, for total sale consideration of Rs.42,97,619/-, in the said project. Buyers Agreement in respect of that unit was executed between the parties on 24.03.2008. As per Clause 21.1 of the said Agreement, the opposite parties were liable to deliver physical possession of the said unit, within a maximum period of 36 months, from the date of allotment i.e. latest by 10.03.2011, date of allotment being 11.03.2008. Admittedly, it was not done. It has been candidly admitted by the opposite parties, in their joint written statement that construction of the tower, in which the said unit  (C2-F05-501) was located could not be started. However, on the other hand, it is also evident on record that despite the fact that construction of the said unit never took place, the opposite parties, kept on raising demands in respect of the same and had received substantial amount till August 2013. This act on the part of the opposite parties, amounts to grave unfair trade practice. It is also an admitted fact that for want of construction of initially allotted unit (TVM C2-F05-501), the complainants were relocated to unit bearing no.TVM F1-F05-502, in the same project, in Tower F1 instead of Tower C, in December 2013.  The total cost of relocated unit was fixed at Rs.48,93,167/- inclusive of basic sale price, external development charges, car parking etc. At the same time, it is also an admitted fact that possession of even relocated unit was not offered to the  complainants, by the date when this complaint was filed or even thereafter, during pendency of this complaint, despite the fact that out of the total cost of relocated unit i.e. Rs.48,93,167/-, the complainants had paid an amount of Rs.45,88,561/-, i.e. more than 90%. The complainants were relocated to unit bearing no.TVM F1-F05-502, in December 2013 and now it is July 2018, still the opposite parties are not ready for delivery of possession thereof. No firm date has been assigned, by which, possession of the unit can be delivered to the complainants. It has only been said that after completing the remaining work; thereafter the opposite parties will apply for occupation certificate and after receiving the same, they will offer and deliver possession of the relocated unit to the complainants.  The complainants had booked a unit with the opposite parties, as far as back in 2008 and now it is August 2018. Already, a period of more than 9 years have elapsed, still the complainants are empty handed. Furthermore, except bald assertion, no cogent and convincing evidence has been placed on record that the area where the relocated unit is located has been made habitable or that the unit is near completion, as claimed by the opposite parties. The complainants cannot be made to wait for an indefinite period, for delivery of physical possession of the unit purchased by them, at the whims and fancies of the opposite parties. Under these circumstances, it can also be said that there is a material violation on the part of the opposite parties. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding 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.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, held as under:-

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

 

The above view taken by the National Commission, has been reiterated by it, recently in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No. 1814 of 2017 decided on 05.07.2018. Relevant part of the said order reads thus:-

“This Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment”.

The opposite parties, therefore, have no right, to retain the hard-earned money of the complainants, deposited towards price of the relocated unit, in question. The complainants are thus, entitled to get refund of amount deposited by them.

                In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

10.          The next question, that falls for consideration, is, as to whether, the complainants are speculators, and that they have purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of consumer, as defined under Section 2 (1) (d) (ii) of the Act., as alleged by the opposite parties. It may be stated here that there is nothing, on record to show that the complainants are property dealers and are indulged in sale and purchase of property, on regular basis. In para no.1 of the complaint, supported by the affidavit of complainant no.1, it has been specifically stated by the complainants that the unit, in question was purchased by them, for their residential purpose. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, 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,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties in their written reply, therefore, being devoid of merit, is rejected.  

                As far as contention raised by the opposite parties, to the effect that since the complainants are NRIs, as such, in that event also, they would not fall within the definition of consumer, it may be stated here that, no law debars NRIs, with roots in India, to purchase a residential property in India. Under similar circumstances, the Hon`ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

               

                In view of above, plea raised by the opposite parties stands rejected.

11.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide this complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that the Agreement containing detailed terms and conditions in respect of the unit in question, was executed between the parties, at Chandigarh. Not only as above,  from  payment receipts placed on record at pages 22 to 24 reveal that substantial amount has been received by the opposite parties, from the complainants, towards price of the said unit, at Chandigarh, as the same bear round stamp of Chandigarh Office of the Company. Furthermore, almost all the documents placed on record by the complainants, reveal that the same were issued from SCO No.120-122, First Floor, Sector 17-C, Chandigarh. As such, a part of cause of action arose to the complainants, at Chandigarh, to file this complaint. This Commission, thus, has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the opposite parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

12.         Another objection taken by the opposite parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the 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.  Relevant part of the said order reads thus:-

“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. ”

In the present case, if total value of unit, in question i.e. Rs.48,93,167/-, plus compensation claimed by way of interest @15% p.a. on the amount deposited to the tune of Rs.45,88,561/-; compensation to the tune of Rs.5 lacs claimed for mental agony and physical harassment, till the date of filing this complaint, is taken into consideration, it exceeds Rs.20 lacs  and fell below Rs.1 crore i.e. it comes around Rs.88,69,032/-. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide this complaint. The objection taken by the opposite parties that this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.

13.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not.  It may be stated here that since it has been frankly admitted by the opposite parties, in number of paragraphs of their joint written statement that offer of possession of the initially allotted unit or relocated unit was never made  by the stipulated date or even by the date when arguments  were heard in this complaint, for want of complete construction and also for want of occupation certificate, and on the other hand, amount deposited was also not refunded to the complainants alongwith interest, as such, there is continuing cause of action, in their favour, 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). Under these circumstances, it is held that the complaint is not at all barred by time. The plea taken by the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

                At the same time, once a plea has been taken by the opposite parties that the complaint filed is beyond limitation, as such, in the same breath, taking another plea to say that time is not to be considered as essence of the contract, in case of immovable property, has no legs to stand and, is accordingly rejected.  

14.         Another objection raised by Counsel for the opposite parties that since it was mentioned in the Agreement that the Company only proposes to deliver possession of the unit within maximum period of 36 months, from the date of allotment thereof, as such, no definite assurance was given, therefore, time was not to be considered as the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 21.1 of the Agreement that possession of the unit will be delivered by the opposite parties, within a period of maximum 36 months, from the date of allotment, subject to force majeure circumstances or reason beyond the control of the opposite parties. In the instant case, the opposite parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the opposite parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 21.1 of the Agreement, the opposite parties were bound to deliver possession of the unit, within a maximum period of 36 months, from the date of allotment of the unit, as such, time was, unequivocally made the essence of contract.

                At the same time, the opposite parties, also cannot evade their liability, merely by saying that since the words “shall endeavor/try/propose etc.” was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the unit is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/allotment letter, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the plots/unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the opposite parties in this regard also stands rejected.

15.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.45,88,561/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the  opposite parties, for their own benefit, since long. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest (compounded quarterly @15%) as per Clause 4.1 of the Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.45,88,561/- alongwith interest, from the respective dates of deposits till realization. 
16.         As far as the plea taken by the opposite parties, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (opposite parties) case, that they were ready with possession of the relocated unit, to be delivered to the complainants, by the stipulated date but the complainants wanted to rescind the contract, on account of some unavoidable circumstances/financial constraints or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the opposite parties, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per law. In this view of the matter, the plea taken by the opposite parties, in this regard, has no legs to stand and is accordingly rejected.
17.          Since, it has already been held that the complainants are entitled to refund of the amount deposited, alongwith interest and compensation, as such, the plea taken by the opposite parties to the effect that they are ready to pay penalty amount for the period of delay, in delivery of possession cannot be considered, at this stage. If the opposite parties are allowed to invoke this Clause of the Agreement, in the instant case, regarding payment of penalty, that would amount to enriching them, at the cost of the complainants. The defence taken is accordingly rejected.
18.         Now coming to the objection taken by the opposite parties with regard to court fees, we have gone through the requisite documents and found that correct fees to the tune of Rs.4,000/- being the claim of the complainants above Rs.50 lacs and below Rs.1 crore, has been paid by them. Objection taken in this regard, as such, being frivolous, is rejected.
19.         Another objection with regard to power of attorney was taken by the opposite parties, with a view to defeat the genuine claim of the complainants. We have gone through the contents of the said power of attorney, which reveals that complainant no.2 who is son of complainant no.1 has authorized him (complainant No.1) on his (complainant no.2) behalf, to defend this case. It further reveals from the contents of the said power of attorney that when the same was executed, complainant no.2 was in Ludhiana, Punjab only, as such, the question of getting the same embossed from the Indian Embassy, did not at all arise. Taking such an objection, is nothing, but a tool to defeat the genuine claim of the complainants. Even otherwise, the Act, 1986, is a beneficial legislation, to provide speedy, inexpensive and hassle free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. It was also so said by the Hon’ble Supreme Court of India, in the case of V. Kishan Rao  Vs, Nikhil Super Speciality Hospital and another, Civil Appeal NO.2641_ OF 2010, (Arising out of SLP(C) No.15084/2009), decided on March 8, 2010. Relevant contents of the said order reads thus:-

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

In view of above, objection taken by the opposite parties, in this regard, stands rejected.

20.          A plea was also taken by the opposite parties that since the complainants were defaulters in making payment towards price of the unit, in question, which fact is evident from the statement of accounts, showing Rs.21,070/- payable towards delayed payment interest, as such, they are not entitled to any relief claimed by them. We have gone through the statement of accounts and found that the said delayed payment interest has been shown to be charged in the month of February 2014, when admittedly the opposite parties have not even started the construction of the initially allotted unit, for which they had already received more than Rs.12 lacs, as far as back till 2010 and by that time, even possession of the relocated unit was also not in sight. Thus, under above circumstances, it has not been clarified by the opposite parties, as to under what Clause and for which unit, they levied such delayed payment interest. It is therefore held that the act of levying delayed payment interest by the opposite parties, especially, when they were not in a position to start construction of the initially allotted unit and by that time, even possession of the relocated unit was also not in sight, amounted to grave deficiency in providing service and also adoption of unfair trade practice, on their part. In this view of the matter, such a plea taken, stands rejected.   

        As far as objection taken with regard to filing of complaint against the opposite parties, in the NRI Commission is concerned, it may be stated here that it is settled law that the jurisdiction of the consumer forum is not ousted, even if the subject matter of the said suits is the same agreement which is the foundation of the consumer complaint, is pending before Civil Court even. Had the complainants filed a complaint before any Agency/ Commission/Civil Court and had they received the amount deposited with interest etc. the matter would have been different. Under similar circumstances, the National Commission, in the case titled as Yashwant Rama Jadhav Vs.  Shaukat Hussain Shaikh & Anr., First Appeal No. 1229 of 2017, decided on 10 Nov 2017, has held as under:-

 “….The jurisdiction of the consumer forum is not ousted on account of a Civil suits having been instituted by the respondents, even if the subject matter of the said suits is the same agreement which is the foundation of the consumer complaint”.

 

Under similar circumstances, a similar question, as to whether, the decision of the Ombudsman is binding on the complainant or that the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Fora Constituted under the Consumer Protection Act, fell for determination before the National Commission in the case titled as Kamleshwari Prasad Singh vs National Insurance Co. Ltd.  I (2005) CPJ 107 NC. The National Commission held as under:-

“In view of the above discussion, it is held that the decision of the Ombudsman is not binding on the complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Fora Constituted under the Consumer Protection Act.”

 

At the same time, it cannot be said that there was any concealment on the part of the complainants, in not disclosing the fact that a complaint filed by them against the opposite parties, is pending before NRI Commission because that (complaint) was filed before it (NRI Commission) on 26.03.2018, whereas, this complaint had been filed before this Commission on 14.03.2018.

As such, plea taken by the opposite parties, in this regard, stands rejected.

21.         An objection was also taken by the opposite parties, that since opposite party no.3 is not the CEO of the Company, as such, he has been wrongly impleaded as necessary party to this complaint. It may be stated here that the complainants by way of placing document Annexure C-7 have proved that opposite parties no.2 and 3 are the Authorized Signatories of the Company. It is evident from the said document that Sh.Shravan Gupta, is the Director of the Company, who joined on 18.02.2005 and Sh.Sanjay Malhotra, joined as CEO of the Company on 23.05.2016. As such, above fact clearly goes to show that opposite parties no.2 and 3 at the relevant time, were looking after day to day affairs of the Company, in the capacity of Director and CEO respectively. The said document has gone unrebutted by the opposite parties. It is therefore held that the opposite parties jointly and severally should be held responsible for mental agony, harassment and financial loss caused to the complainants, in the manner explained above.
22.         No other point, was urged, by Counsel for the parties.
23.         For the reasons recorded above, this complaint is partly accepted, with costs. Opposite parties no.1 to 3, are jointly and severally directed as under:-

1. To refund the amount Rs.45,88,561/-, to  the  complainants, alongwith interest @13% p.a.,  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 complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @15% p.a., instead of 13% p.a. from the date of default, and interest @13% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

24.         However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
25.         Certified Copies of this order be sent to the parties, free of charge.
26.         The file be consigned to Record Room, after completion.

Pronounced.

07.08.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

 

Rg

 

 

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

MA/384 OF 2018 IN COMPLAINT CASE NO. 115 OF 2018

Pritam Singh Natt & anr. Vs. Emaar MGF Land Ltd. and ors.

 

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

                MRS. PADMA PANDEY, MEMBER.

 

Present    Sh.Sanjeev Sharma, Advocate for the applicants/Opposite Parties.

                 Sh.Hoshiar Chand, Advocate for the non-applicants/complainants.

                 

Dated:- 07.08.2018

ORDER

                Vide our detailed order of even date, recorded separately, the issue raised with regard to arbitration, has already been dealt with and stood rejected by this Commission.

                As far as the prayer made by the applicants to give directions to the complainants to produce original and certified copy of Buyer’s Agreement is concerned, it may be stated here that the applicants have failed to convince this Commission, as to why they want the said documents, especially when the same had been issued by them only to the complainants, after retaining one original set thereof. It is not the case of the applicants, that the complainants have placed on record, fabricated copy of the agreement. As such, in this view of the matter, prayer made stands rejected.  

        This application is disposed off, accordingly.

        Certified copy of this order, alongwith certified copy of the order passed in main consumer complaint be sent to the parties, free of cost.

 

(PADMA PANDEY) MEMBER

(JUSTICE JASBIR SINGH (RETD.)) PRESIDENT

 

Rg.