Chandigarh

StateCommission

CC/704/2016

Mr. Vineet Arora - Complainant(s)

Versus

M/s Emaar MGF Land Limited - Opp.Party(s)

In Person

25 Apr 2017

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	704 of 2016
Date of Institution	:	18.10.2016
Date of Decision	:	25.04.2017

 

Mr.Vineet Arora son of Sh.Sham Sunder Arora, resident of House No.230, Sector 4, Mansa Devi Complex, Panchkula-134114

……Complainant

V e r s u s

1. M/s Emaar MGF Land Limited, (Mohali Hills), SCO No.120-122, First Floor, Sector 17-C,  Chandigarh-160017, through its Managing Director/ Director/ Authorized Signatory.
2. M/s Emaar MGF Land Limited, Corporate Office at ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Chairman/Managing Director/ Director/ Authorized Signatory.

.... Opposite Parties

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      Sh.Deepak Aggarwal, Advocate for the   complainant alongwith complainant in       person.

      Sh.Ashim Aggarwal, Advocate for the      opposite parties.

 

PER PADMA PANDEY, MEMBER

                The facts, in brief are that the complainant is an employee of HDFC Bank and in the year 2010, he approached the Opposite Parties to purchase a plot for his residential purpose. It was further stated that he purchased plot no.107 (400 sq.yds), Pinewood Greens, Sector 108, Mohali Hills, SAS Nagar Mohali, in resale from “M/s Jyoti Foam Private Limited” as per document dated 24.08.2006 (Annexure C-1).  It was further stated that when the complainant asked the Opposite Parties about possession of the plot, it was assured to him that the same will be delivered shortly. It was further stated that total cost of the plot was fixed at Rs.53,71,332/- which included basic sale price of Rs.46 lacs (+) external development charges of Rs.1,96,332/- and preferential location charges of Rs.5,75,000/-. It was further stated that the complainant had paid the entire sale consideration of Rs.53,71,333/- to the Opposite Parties. It was further stated that the complainant was compelled to pay delayed payment interest of Rs.2,32,000/-.  It was further stated that the complainant also paid Rs.5,28,068/-, vide cheque dated 04.08.2010 (Annexure C-3). It was further stated that Rs.1 lac was also paid vide cheque dated 04.08.2010 (Annexure C-4). It was further stated that the complainant paid total amount of Rs.61,31,401/-. It was further stated that transfer was effected by the Opposite Parties in favour of the complainant, vide nomination letter dated 09.08.2010  (Annexure C-5). As per  Clause 8 of Plot Buyer`s Agreement dated 04.07.2007 (Annexure C-6), the Opposite Parties were liable to handover the physical possession of residential plot within a maximum period of three years from the date of execution of the same i.e. latest by 04.07.2010. It was further stated that the complainant asked the Opposite Parties, to deliver possession upon which it was told that progress of development in the project had already been intimated to his predecessor and possession will be delivered shortly.  It was further stated that the complainant waited patiently for possession of the plot. It was further stated that the complainant made various visits to the Opposite Parties. Vide letter dated 16.12.2011 (Annexure C-7) it was informed to the complainant that the Opposite Parties have initiated community development works like parks, golf course, roads, electrical lighting, setting up of STP, rain water harvesting system, electrical sub stations etc. It was further intimated that upon completion of above and receipt of completion certificate from GMADA, the Opposite Parties shall commence the process of execution and registration of sale deed and shall keep the complainant updated on further developments in relation. It was further stated the complainant was asked to come on 02.05.2012 to the office of the Opposite Parties. It was further stated that upon visit on the said date, he was asked to sign a Certificate dated 02.05.2012 (Annexure C-8) relating to possession on the pretext that his case is being taken up. It was further stated that it was told to the complainant that this letter will finally be taken up at the time of actual delivery of possession of the plot and as such, after its execution by the Authorized Signatory and Project-in-Charge,  a copy of the same will be supplied to him. An affidavit (Annexure C-9) to make payment of maintenance charges as and when actual physical possession will be delivered was also obtained from the complainant by the Opposite Parties. It was further stated that thereafter the complainant requested the Opposite Parties to deliver actual physical possession of the plot, as the entire sale consideration stood paid but to no avail. It was further stated that various physical visits were made to the office of the Opposite Parties at Chandigarh but to no avail. It was further stated that after about more than three and a half years, a letter dated 02.05.2014 (Annexure C-10) was sent by the Opposite Parties to the complainant, wherein a demand of Rs.7,15,201.21ps. was made under various heads, to be made by 09.06.2014 to enable the Opposite Parties to handover possession of the plot. It was further stated that on receipt of letter dated 02.05.2014, the complainant approached the Opposite Parties and challenged the demand raised therein, but to no avail. It was further stated that finally, when the complainant showed his intentions to move to the Court of law, to provide him justice, the said delayed payment charges were waived off by the Opposite Parties vide undertaking cum indemnity document dated 12.05.2014 (Annexure C-11).  It was further stated that the complainant wanted to visit the site to see the development there, he could not enter as the entry points of Sector were sealed/fenced by the Forest Department. It was further stated that the complainant managed to enter the site through temporary/kaccha road and saw that basic amenities were not in sight. The project was as good as jungle. It was further stated that under the prevailing circumstances aforesaid, the complainant brought to the notice of the Opposite Parties that he is not interested in getting the sale deed registered at that stage. He met the Officers of the Opposite Parties and showed his pain, having suffered on account of their act and conduct. It was further stated that thereafter the Opposite Parties also refunded the excess amount of Rs.3,15,591/- received by them towards external development charges, vide remittance advice dated 07.10.2014 (Annexure C-12). It was further stated that information placed on record obtained by similar consumers, under RTI Act 2005,  reveals that the Opposite Parties, were not in a position to deliver possession of plots in the said project for want of basic amenities, and requisite permissions/ approvals/sanctions.  It was further stated that till date, actual physical possession of the plot has not been handed over by the Opposite Parties, nor they are in position of the same.  The complainant has also placed on record RTI Information and letters to prove the fact regarding lack of approvals, basic amenities and sealing of the project. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and 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 (in short the ‘Act’ only), was filed.

2.         The Opposite Parties in their written version, have taken objection regarding arbitration clause in the Agreement, and also they separately moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was stated that possession of the plot was offered in 2009 and the complaint filed now is time barred. It was further stated that possession of the unit was offered to the complainant after completion of the amenities, as per the terms and conditions of the Agreement and now the complainant is ceased to be a consumer. It was further stated that letter of intimation of possession was sent to the original allottee on 29.11.2009.  It was stated that this Commission has no pecuniary jurisdiction as well as territorial jurisdiction to try and entertain the complaint. It was further stated that reminder letter was sent to the complainant on 16.12.2011 to take possession of the plot. It was further stated that the complainant has failed to disclose that he has taken over possession of the plot on 02.05.2012 and he has also failed to disclose letter dated 12.05.2014 stating that he is not interested in getting conveyance deed executed. It was further stated that the complainant did not fall within the definition of “Consumer” as prescribed under Section 2(d) of the Consumer Protection Act as the complainant purchased the plot, in question, for commercial purposes/speculation. It was admitted that the complainant purchased plot in resale from M/s Jyoti Foam Private Limited. It was further stated that the Opposite Parties rightly charged delayed payment interest from the complainant as he stepped into the shoes of original owner after resale and was responsible for all rights as well as liabilities. It was admitted that besides making payment of Rs.58,15,810/-,the Opposite Parties received Rs.1 lac as transfer fees and Rs.2,32,000/- and Rs.5,28,068/-, which was paid by the complainant without protest. It was further stated that excess amount as EDC was refunded to the complainant.   It was further stated that as per Clause 8 of the Agreement, the Company shall try and endeavor to hand over possession of the unit within 3 years from the date of execution of the Agreement and in case of delay, the Company was liable to pay compensation but in the present case, the complainant was not entitled for the same. It was further stated that vide letter dated 02.05.2014, demand made was legal. It was further stated that all the necessary approvals were obtained by the Company when the unit was allotted to the complainant. It was further stated that the complainant is taking advantage of inadvertent mention of fact in letter dated 02.05.2014 that possession of the plot would be handed over shortly.  It was further stated that Partial Completion Certificate has already obtained by the Opposite Parties. It was further stated that vide letter dated 11.02.2010, GMADA granted permission to the Opposite Parties for six approaches from Kharar-Banur-Tepla road in Village Raipur kalan to the project of the Opposite Parties and relevant fee was deposited by them. It was further stated that the responsibility of obtaining all statutory permissions for development of the Kharar-Banur-Tepla road is of the state authorities.  It was further stated that vide letter dated 15.04.2015 the Chief Administrator, GMADA was requested by the Opposite Parties to take up issue with Forest Department to provide connectivity. It was further stated that permission of access with the Forest Department is under process. It was further stated that the Forest Department has sealed certain entry points but there is still adequate access to the unit of the complainant i.e. through a motorable road and stand of the complainant that all entry points are sealed is malafide and without any basis. The information placed on record obtained from the Competent Authorities was denied.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.
3.         The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.
4.         The Parties led evidence, in support of their case.
5.         We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

6.             During the pendency of the complaint, the applicant/complainant filed an application on 08.03.2017 for placing on record additional evidence by way of documents (Annexures C-26 to C-28 colly.).

                Sh. Ashim Aggarwal, Advocate accepted notice of the aforesaid application on 10.03.2017 and sought time to file reply to the said application but the same has not been filed.

                In view of reasons mentioned, the application is allowed and the documents aforesaid are taken on record.

                Accordingly, the application stands disposed of.

7.             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 Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint.  This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                In view of the above, the plea taken by Opposite Parties in this regard, being devoid of merit, is rejected.

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

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident from the record, that Plot Buyer’s Agreement (Annexure C-6) was executed at Chandigarh. Letters and payment receipts placed on record also were issued by Chandigarh office of the Opposite Parties, as it bears address as “SCO 120-122, First Floor, Sector 17-C, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission 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. 

9.             Another objection taken by the Opposite Parties with regard to pecuniary jurisdiction, also deserves rejection. The complainant has sought refund of an amount of Rs.58,15,810/-  deposited by him, alongwith interest @11% p.a. from the respective dates of deposits till realization;  compensation to the tune of Rs.2.50 lacs, for mental agony & physical harassment and cost of litigation, to the tune of Rs.50,000/- aggregate value whereof fell above Rs.50 lacs and below Rs.1 crore. It is argued by Counsel for the Opposite Parties that if the entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and in that event, it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016. This issue, whether interest is to be counted when looking into pecuniary jurisdiction of this Commission, came up for consideration in the case of Surjit Singh Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, wherein, after noting similar objections it was observed as under:-

““13.        Now we will deal with another contention of the Opposite Parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the Opposite Parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and  in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

14.        In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the Opposite Parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the Opposite Parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

15.       It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

                As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

                In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 “12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

 (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

 (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

 (3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

 (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

16.         In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the Opposite Parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

              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 objection taken by the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

10.           The objection taken by the Opposite Parties, to the effect that the complainant being investor and therefore do not   fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It is pertinent to note that the complainant in his complaint has stated that he purchased the plot for his residential purpose. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Complainant is a Bank Employee. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Parties, mere bald assertion i.e. simply saying that the  complainant being investor, did not fall within the definition of a consumer, 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  complainant, thus, falls 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.

11.           The next question that falls for consideration is as to whether possession of the plot was physically handed over to the complainant vide letter dated 02.05.2012 (Annexure C-8), and also as to whether, all the basic amenities were available at the site and that all permissions were available with the Opposite Parties or that it was mere a paper possession. Letter Annexure C-8 placed on record reveals that the same is signed by the complainant only and is not signed by any authorized signatory of the Opposite Parties. In the complaint it was stated by the complainant that signatures on the said letter was obtained by him on the pretext that the same would be handed over to him, when actual physical possession of the plot will be delivered to him.

                To answer this question, first of all, it is necessary to mention here that before offering possession of a plot by a builder/Opposite Parties, they were required to complete basic amenities; thereafter, obtain completion/partial completion certificates and necessary approvals from the Competent Authorities and then proceed to offer possession and registration of conveyance and sale deed.

                In the instant case, the Opposite Parties very strongly contended that intimation of possession of the plot had been given to the original allottee vide letter dated 29.11.2009 (Annexure OP/4). However, this fact has been denied by the complainant, as he had purchased the plot only in August 2010 and was not in the know of the things which happened before that date. Perusal of said letter reveals that the same did not bear any date on it. It is also very important to note here that the letter Annexure OP/4 (undated) is signed by the Opposite Parties only and there are no signatures of the original allottee on it. Had the letter Annexure OP/4 been handed over to the original allottee, the same would have definitely been received by it, by way of putting signatures as its acceptance. The column against “accepted by” is blank.  Even this much has not been proved, as to by which mode, the said letter was sent to the original allottee, by the Opposite Parties. The receipt of said letter has also not been produced on record. As per Clause 36 of the Agreement, the Opposite Parties were bound to send any letter, in writing, through registered A.D. Post or Speed A.D. To substantiate their ground, they were required to produce on record any evidence to prove that the said letter (undated) Annexure OP/4 was handed over to the original allottee, but they failed to do so. The authenticity of this document Annexure OP-4, which is not signed by the original allottee is doubted and has no value in the eyes of law. Thus, in the absence of that record, it is held that no such intimation regarding offer of possession was ever sent to the original allottee, by the Opposite Parties. Even otherwise, in various other similar cases, reliance had been placed by the Opposite Parties, on the similar contents contained in the letter Annexure OP-4, which has been negated by this Commission, while holding that the said contents reveal only about significant progress of the project and in no manner, the same can be termed as an offer letter.   

12.           Now coming to the second stand of the Opposite Parties, that vide letter dated 16.12.2011 (Annexure C-7), the complainant was reminded to start construction. We have gone through the contents of the letter dated 16.12.2011. This letter cannot be said as reminder to offer of possession but in fact it was an information regarding initiating of development works like golf course, roads, electrical lighting, STP, rainwater harvesting system, electric substations etc. Vide this letter, it was further informed to the complainant that upon completion of the above facilities and receipt of completion certificate from GMADA, they shall commence the process of execution of sale deed. It was also promised that the Opposite Parties shall keep the complainant updated on further developments in relation to that.

                Perusal of contents of letter dated 16.12.2011 clearly shows that despite the fact that the plot was sold in the year 2006 and possession was committed to be delivered in July 2010, the Opposite Parties initiated development works only in December 2011 i.e. after more than 5 years of allotment. It was also clear from the said letter that sale deed was to be offered for execution, only after completion of development works and especially after receipt of completion certificate, whereas in the instant case only partial completion certificate Annexure OP/3 had been issued in favour of the Opposite Parties on 16.10.2015 and that too was subject to various conditions. Because it is well settled law that possession of residential unit can only be offered after obtaining completion/partial completion certificate, therefore it is clear that before 16.10.2015, the Opposite Parties could not have offered possession of the plot, in question, to the complainant.

                    Significantly, in similar case, the letter dated 16.12.2011 has been negated by the National Commission in Emaar MGF Land Pvt. Ltd. Vs. Krishan Chander Chandna, FIRST APPEAL NO.873 OF 2013, decided on 29th September, 2014, holding as under:-

“Admittedly, the possession was offered by the Opposite Parties, to the complainant after one year of the stipulated date i.e. on 01.07.2011 vide Annexure C-5. The possession, so offered, after delay of one year from the stipulated date, was a mere paper possession as the development in the area has not been completed. This fact is fortified from the contents of letter dated 16.12.2011 (Annexure RW/D), which was written by the Opposite Parties to the complainant after five months of offering the possession, wherein it was mentioned that upon completion of works, mentioned in the aforesaid letter, and receipt of completion certificate from GMADA, the Opposite Parties shall commence the process of execution and registration of sale deed. This letter (Annexure RW/D) also indicates that adequate facilities of electricity and other basic amenities were not available at the site, where the plot was allotted to the complainant. The relevant paras from Annexure RW/D, being relevant are extracted hereunder:-

We would be delighted to assist you in your endeavour to get the building plans approved. Further, once the sanctioned building plans are received, should you decide to construct, prior to the company receiving the Completion Certificate from GMADA, we would be happy to facilitate you with temporary electricity and water connection at applicable rates.

We have already initiated community development works like parks, Golf Course, roads, electrical lighting and setting up of STP (Sewage Treatment Plant), Rain Water harvesting system, and the electrical sub stations.

Upon completion of the above and receipt of Completion Certificate from GMADA, we shall commence the process of the execution and registration of sale deeds and shall keep you updated on further developments in relation.”

13.           Further, as per Clause 10 of the Agreement, it was agreed to between the parties that the allotment of plot was subject to terms and conditions of sanction of layout plan. In the instant case, the complainant by placing on record, letter dated 02.03.2017 Annexure C-27 colly., (information under RTI Act, 2005) issued by Chief Town Planner, SAS Nagar, Mohali, Punjab, has proved that revised layout plan was finally got revised only on 15.12.2014 vide memo no.8167 CTP (Pb.)/MRP-2. It is very pertinent to add here that the layout plan aforesaid was approved subject to various conditions, one of which was to obtain No Objection Certificate from the Forest Department, Ministry of Environment etc. before start of any development activity. Alongwith the said information, the complainant has also placed on record map of the sector in question, which clearly reveals that large portion/chunks of land, in the project had not been acquired by the Opposite Parties by 2014. During arguments, when we put question to Counsel for the Opposite Parties, in the regard, he failed to give any satisfactory answer.

14.           At this stage, to determine as to whether, vide letter dated 02.05.2012 (Annexure C-8) actual physical possession of the plot was handed over to the complainant or not, we are inclined to place reliance on letter dated 16.12.2011 (Annexure C-7) earlier referred in this order and also on the letter dated 02.05.2014 (Annexure C-10) sent by the Opposite Parties to the complainant.

                Vide letter dated 16.12.2011 (Annexure C-7)  as earlier stated, the Opposite Parties promised that upon completion of development works like roads, water, electricity etc. and on receipt of completion certificate, they would go for registration of sale deed of the plot,  in question.  However, surprisingly vide letter dated 02.05.2014 (Annexure C-10) without referring to possession certificate dated 02.05.2012 (Annexure C-8), the Opposite Parties wrote to the complainant that in furtherance to our intimation of possession letter dated 29-NOV-2009, we wish to inform you that we will be commencing the process of execution and registration of sale deed in your favour shortly. No reference was made in letter Annexure C-10 that possession was ever taken over by the complainant vide letter dated 02.05.2012 (Annexure C-8). However, to the contrary, it was told to the complainant vide letter dated 02.05.2014 (Annexure C-10) to make payment of Rs.7,15,201.21ps. to enable the Opposite Parties to hand over the possession of the plot on or before 09.06.2014. Further, contents of letter dated 02.05.2014 (Annexure C-10) at page 61 of the paper book reveals that against the heading ‘Undertaking’ it was mentioned that in order to complete the formalities of handing over and taking over the possession/execution of conveyance deed of the plot, the complainant has to submit the undertaking as per the format attached. Further, contents of letter dated 02.05.2014 (Annexure C-10) at page 61 of the paper book reveals that against the heading ‘Power of Attorney’ it was mentioned that in case you are unable to personally visit the site and take the physical possession of your plot and for getting execution of conveyance deed, he may appoint any representative.

                From the aforesaid contents of letter dated 02.05.2014 (Annexure C-10), it is crystal clear that actual physical possession of the plot was never handed over to the complainant vide letter dated 02.05.2012 (Annexure C-8). Also, when it was clearly stated by the Opposite Parties vide letter dated 16.12.2011 that sale deed would only be got executed after obtaining completion certificate, whereas admittedly only partial completion certificate was obtained by them on 16.10.2015 (conditional), then no cause arose to them, to issue letter on 02.05.2014 for execution of the sale deed. Also, had physical possession been handed over to the complainant vide letter dated 02.05.2012 (Annexure C-8), the Opposite Parties would not have, vide letter dated 02.05.2014 (Annexure C-10), asked the complainant to make his physical presence and take possession of the plot. On the other hand, had possession been handed over to the complainant in 2012, the Opposite Parties would have definitely levied holding charges upon the complainant, in letter dated 02.05.2014 but it is not so. From the sequence of events, it is proved that actual physical possession of the plot was never handed over to the complainant by the Opposite Parties and it was going ahead, mere on papers only. 

15.           The Opposite Parties have placed reliance on Notification (2006) Annexure OP/2 to say that they were exempted from obtaining completion certificate. If the Opposite Parties were exempted from obtaining the completion certificate, they should not have made commitment to the complainant vide letter dated 16.12.2011. Secondly, the Notification  Annexure OP/2 was issued in favour of the Opposite Parties subject to various conditions like obtaining permissions from Forest Department; commencement of work in accordance to the sanction layout plan and on acquiring entire project land in its name etc. As per the said Notification, the promoter was not to carry out any works at the site till above conditions were fulfilled. It is on record that the said terms and conditions were not fulfilled by the Opposite Parties, by the time, they allegedly offered possession in the years 2009, 2011, 2012 and 2014. 

16.           It is the case of the complainant that after receipt of letter dated 02.05.2014, when he tried to enter the project site, he was not allowed to enter because of fencing/sealing of entry points by the Forest Department. However, during the period intervening, he visited the office of the Opposite Parties, a number of times, and ultimately sought refund of amount paid. In order to prove his version that the basic amenities were not in existence at the site and also that the entry points of the project were sealed by the Forest Department, the complainant has placed on record, copies of the RTI Information, issued by the Competent Authorities. Vide RTI Information dated 29.04.2014 Annexure C-17, it was clearly intimated by Greater Mohali Area Development Authority (GMADA), that the Opposite Parties, had not even applied to them for commissioning of sewerage treatment plant, water supply, electricity etc. The said RTI Information goes unrebutted by Opposite Parties. 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, the Opposite Parties could have obtained certificate from the said Authorities, to say that the same had not been supplied from their Department, but they (Opposite Parties) failed to do so. Thus, it could safely be said that the complainant has proved his case, that Opposite Parties did not even apply for obtaining permissions to provide basic amenities such as water, electricity etc., till  29.04.2014, the date when RTI information aforesaid, was issued by the Authorities concerned. As such, the claim of the Opposite Parties that they were ready with all amenities at the time of alleged offer of possession in 2009 to 2014, is crushed.

                Further, it is also an admitted case, that entry points of the project had been sealed by the Forest Department, as the Opposite Parties, failed to take requisite permissions/sanction from it, which fact has also been admitted by them (Opposite Parties), in their written version and also before the National Commission in First Appeal bearing No.708 of 2016, decided on 14.09.2016 (Emaar MGF Land Limited Vs. Mandeep Saini). The said fact is corroborated from the letter dated 15.04.2015 Annexure-C-16, sent by Opposite Parties, 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 the Opposite Parties, 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, 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. If it is so, then it remained unclarified by the Opposite Parties, 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.

17.           The stand of the complainant that there were no basic amenities at the site, by the time the Opposite Parties claimed that they have offered possession complete in all respect is also fortified from a similar case titled Iqbal Singh Vs. Emaar MGF Pvt. Ltd. and anr II (2015) CPJ 9B (CN). The said case was filed in respect of plot no.48, in the same project and same sector. In that case, the Opposite Parties admitted that they could not offer possession to the complainant, on account of non-development at the site and non-provision of the amenities promised in the Plot Buyer’s Agreement. This admission was made by the Opposite Parties in December 2014 (18.12.2014).  Relevant part of admission of the Opposite Parties in that case can be found below:-

“The factum of allotment of plot no.48, approximately measuring 500 square yards, in Pinewood Greens, Sector 108, Mohali Hills, Mohali, @Rs.11,500/- per square yard, in favour of the complainant, was admitted. It was also admitted that the Opposite Parties had received the amount, towards the plot, in question, as mentioned in the complaint, from the complainant. Execution of the Plot Buyer’s Agreement dated 17.06.2008, Annexure C-1, between the parties was also admitted. It was also admitted that possession of the plot, in question, could not be delivered, to the complainant, till the date of filing the consumer complaint, or even till date. It was stated that the possession of plot no.48, approximately measuring 500 square yards, in Pinewood Greens, Sector 108, Mohali Hills, Mohali, could not be offered to the complainant, on account of non-development at the site and non-provision of the amenities promised in the Plot Buyer’s Agreement”.

 

18.          In view of above, it is held that the act of the Opposite Parties, in giving paper possession of the plot, in question, 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. Still, in para no.23 of their written reply, the Opposite Parties are saying that permission of access with the Forest Department is under process. It is therefore held that the possession made by Opposite Parties in the year 2014, was nothing but a paper possession, which is not sustainable, in the eyes of law.

19.           The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  As discussed above, the Opposite Parties vide letter dated 16.12.2011 promised the complainant that upon completion of development works and upon receipt of completion certificate from GMADA, they will get execute the sale deed. It is settled law that conveyance deed in respect of the property could only be executed after obtaining completion/occupation certificate. It was so held by the National Commission in Randeep Singh Oberoi and another Vs. M/s A & A Builders and Developers & 6 Ors., FA No.714 of 2013, decided on 19.01.2015. However, in the instant case, only partial completion certificate was obtained by the Opposite Parties, only on 16.10.2015 and that too with certain conditions, failing which the same was deemed to have been cancelled. The Opposite Parties have not brought on record any document to prove that they have complied with all the directions, as given in the partial completion certificate and that they have applied for final completion certificate with the competent Authorities.

                Whatever the case may be, as per their own commitment as also as per settled law, the Opposite Parties, legally could have offered possession only after 16.10.2015 and not before that. If they had offered possession of the plot before that date, it could very well be said that the said act has been done by them, only to defeat the claim of the complainant, under the garb of limitation, which is not appreciable, as far as the present case is concerned. Thus, if the date of offer of actual physical possession is taken from 16.10.2015 (date of partial completion certificate), the complaint having been filed in October 2016, is well within limitation. Just to defeat the claim of the complainant on the ground of limitation, the Opposite Parties cannot take advantage of offering and giving paper possession of the plot to the complainant, in the absence of partial completion certificate, committed to be obtained by them. As such, in view of sequence of events mentioned above, the complaint filed is within limitation. 

                No doubt, to substantiate their stand that the complaint is time barred, the Opposite Parties have placed reliance on Harpal Arya Vs. Housing Board Haryana, Revision Petition No.3338 of 2007, decided on 04.01.2016 by the National Commission and Rajinder Kumar Sood Vs. Hill View Promoters and another, Complaint Case No.888 of 2016, decided on 08.12.2016, by this Commission. We have gone through the facts of above cases thoroughly and found that the same were entirely different from the facts of the instant case. In Harpal Arya case (supra), it was proved by the Developer/Builder that physical possession was actually taken over by the allottee. From the facts of that case, we find nothing, which could prove that the possession so taken over by the complainant was proved to be handed over on papers only. It was also not the case of the allottee in Harpal Arya case (supra),  that the Developer/Builder again issued letter to him after two years, to take physical possession of the plot, despite the fact that possession certificate had been got signed from him earlier. It was also not proved by the allottee in Harpal Arya case (supra), by placing on record RTI Information and other relevant documents that the Developer/Builder was not in a position to deliver actual physical possession as it failed to take necessary permission from the Competent Authorities and also failed to provide complete basic amenities, before handing over possession of the plot therein. It was also not admitted by the Builder/Developer in Harpal Arya case (supra), that the project was sealed by the Forest Department and permissions in regard thereto, were still not obtained from the Competent Authorities and the case was under process.  Similarly, in Rajinder Kumar Sood case (supra), the facts are entirely different. The main reason to decline the claim of the complainant was that the complainant therein failed to prove by placing on record any document that in the month of May 2013, the unit was transferred by his son, in his name. Furthermore, in Rajinder Kumar Sood case (supra)  also, the allottee failed to prove that possession of the unit offered to him was a paper possession. However, in the instant case, the complainant has proved his case by placing on record cogent evidence that only certificate for possession was got signed from him in 2012 and thereafter, when possession was offered to him in 2014 that too was found to be paper possession, as when he tried to enter the project, he found that the entry points of the project was sealed. The fact of sealing of entry points of the project has not been denied by the Opposite Parties and still the Opposite Parties have stated in para no.23 of their reply that permission of access with the Forest Department is under process. As such, none of the cases referred to by the Opposite Parties,  have identical facts, as are of the present case. No help therefore can be taken from by the Opposite Parties, from the cases reliance whereupon has been placed.  

20.           The next question, that falls for consideration, is, as to whether, there was any concealment on the part of the complainant, as alleged by the Opposite Parties or not. Counsel for the Opposite Parties has vehemently contended that the complainant has concealed the material fact regarding taking over possession vide certificate dated 02.05.2012, which was also acknowledged by him vide email aforesaid and also vide letter dated 12.05.2014 he gave in writing that he is not interested to get conveyance deed executed. Perusal of documents on record, reveal that the complainant himself has placed on record letter dated 02.05.2012, which as stated above, has not been signed by any representative of the company. Once that letter is placed on record by the complainant himself, the question of concealment in regard to the same did not arise. As far as the contents of letter dated 12.05.2014 are concerned, the complainant has brought the fact of non-getting of conveyance deed executed, in para no.20 of his complaint. Relevant contents of the complaint are reproduced below:-

“Basic amenities were not in sight. The project was as good as jungle. As such, under the prevailing circumstances aforesaid, the complainant brought to the notice of the Opposite Parties that he will never be interested to get execute the sale deed as of now (at that stage)”.

                At the time of arguments, it was asked to the complainant, as to why he has not placed on record the said letter dated 12.05.2014, he replied that the said letter was typed, printed and got signed at the office of the Opposite Parties at Chandigarh, and a copy of the same was not retained by him and that because he faintly remembered that such  letter was obtained from him, therefore he has mentioned the said fact in his complaint. In these circumstances, it cannot be said that there was any concealment of facts by the complainant. Had certificate of possession dated 02.05.2012 and contents of letter dated 12.05.2014 been not disclosed by the complainant in his complaint, only in those circumstances it would have been said that there was concealment on the part of the complainant. The Opposite Parties relied upon the cases titled as Faqir Chand Gulati Vs M/s Uppal Agencies P. Ltd and another, SLP no.18225-18226/2011 decided on 25.07.2012 by the Hon’ble Supreme Court of India and BTM Industries Limited Vs. New India Assurance Co. Ltd., CC No.86 of 2010, decided on 15.01.2016 by the National Commission, to state that there was concealment on the part of the complainant. We have gone through the contents of both the cases. In those cases, it was specifically held that even if we presume that the copy of the letter was not retained by the complainant, it ought to have necessarily disclosed the factum of writing that letter. In the present case, as stated above, the complainant himself has placed on record letter dated 02.05.2012 signed by him only and further he also has disclosed the factum that he brought to the notice of the Opposite Parties that he will never be interested to get execute the sale deed as of now (at that stage).  In view of above, the objection raised by Counsel for the Opposite Parties being devoid of merit, must fail and the same stands rejected.

21.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of entire amount deposited by him or not. Admittedly, the complainant from the very beginning was interested in taking possession of the plot, for which he has signed the certificate dated 02.05.2012 also, and has proved to be a paper possession. This Commission has also held the said letter to be paper offer, as completion/partial completion certificate had not been obtained by the Opposite Parties by that date, as committed by them vide letter dated 16.12.2011 and also basic amenities were not complete, as is evident from the RTI Information placed on record. Vide letter dated 16.12.2011, the complainant was informed that sale deed of the plot will be got executed upon completion of the development words and also on obtaining of completion/partial completion certificate. The complainant did not challenge the said letter, meaning thereby that he agreed to take physical possession of the plot, on obtaining completion/partial completion certificate and remained silent till it was obtained. However, when the Opposite Parties admittedly obtained partial completion certificate on 16.10.2015, now the complainant is before us, seeking refund of the amount deposited. This act of the complainant amounted to rescinding of the contract, at this stage. Thus, once it is held that the complainant is rescinding the contract, his case with regard to refund of the deposited amount is to be dealt with, in accordance with Clause 2 (f) of Agreement, which says that in case of termination of the contract, the Opposite Parties were entitled to forfeit the earnest money to the extent of 20% of the sale price. However, in our considered opinion, forfeiture of 20% of the sale price is too high and if amount to the extent of 10% of the basic sale price of Rs.46 lacs, is deducted out of the sale price, that would meet the ends of justice. Similar view has been taken by the National Commission in DLF Limited vs. Bhagwanti Narula, Revision Petition No. 3860 of 2014, decided on 06.01.2015, while holding as under:-

“11.    It was contended by the learned Counsel for the Petitioner Company that since the complainant had specifically agreed to deliver 20% of the sale price as earnest money, the forfeiture to the extent of 20% of the sale price cannot be said to be unreasonable, the same being inconsonance with the terms agreed between the parties. This was also his contention that so long as the Petitioner Company was acting as per the terms and conditions agreed between the parties, it cannot be said to be deficient in rendering services to the complainant. We, however, find ourselves unable to accept the aforesaid contention, since, in our view, forfeiture of the amount which cannot be shown to be a reasonable amount would be contrary to the very concept of forfeiture of the earnest money.  If we accept the aforesaid contention, an unreasonable person, in a given case may insert a clause in Buyers Agreement whereby say 50% or even 75% of the sale price is to be treated as earnest money and in the event of default on the part of the Buyer; he may seek to forfeit 50% of the sale price as earnest money.  An Agreement for forfeiting more than 10% of the sale price, in our view, would be invalid since it would be contrary to the established legal principle that only a reasonable amount can be forfeited in the event of default on the part of the Buyer.  In Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.- (1996) 4 SCC 704, the Hon’ble Supreme Court accepted the contention that in an appropriate case, the Consumer Forum without trenching upon acute disputed question of facts may decide the validity of the  terms of the contract based upon the fact situation and may grant relief, though, each case depends upon its own facts.”

               It is therefore held that the complainant is entitled to the amount of Rs.53,55,810/- i.e. after deducting 10% from the basic sale price of Rs.46 lacs from the deposited amount (Rs.58,15,810/- (-) Rs.4,60,000/-).

22.           It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. 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 complainant is entitled to interest @11% p.a. on the amount of  Rs.53,55,810/-  from the date of his first request made to the Opposite Parties on 08.10.2016 (Annexure C-24).

23.           No other point, was urged, by Counsel for the parties.

24.           For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties, jointly and severally, are directed as under:-

 

1. To refund the amount of   Rs.53,55,810/- to  the complainant, [Rs.4,60,000/- deducted being 10% of basic sale price of Rs.46 lacs from the deposited amount of Rs.58,15,810/-), alongwith interest @11% p.a. from 08.10.2016 onwards.
2. To pay cost of litigation of Rs.25,000/- to the complainant.
3. The payment of awarded amounts mentioned at sr.nos.(i) & (ii), shall be made by the Opposite Parties, to the complainant, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, they (Opposite Parties) shall be liable to pay the amount mentioned at sr.no.(i), alongwith penal interest @14% p.a. instead of @11% p.a., and interest @11% p.a., on the amount mentioned at sr.no. (ii), from the date of filing of this complaint, till realization.

25.           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.

26.           Certified Copies of this order be sent to the parties, free of charge.

27.           The file be consigned to Record Room, after completion.

Pronounced.

25^th April, 2017                                                 Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 Rb.