Chandigarh

StateCommission

CC/71/2017

Gurjinder Singh - Complainant(s)

Versus

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

Jasminder Singh Thind, Adv.

05 Jul 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	71 of 2017
Date of Institution	:	20.01.2017
Date of Decision	:	05.07.2017

 

Gurjinder Singh s/o S. Gurdev Singh Srawn, r/o Street No.8, Gulmohar Nagar, Amloh Road, Khanna at present r/o H.No.149, Sector 78, SAS Nagar, Mohali.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Pvt. Ltd., MGF House, 17-B, Asaf Ali Road, New Delhi, through its Managing Director.
2. M/s Emaar MGF Land Pvt. Ltd., SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh, through its Authorized Officer.

                                                    .... Opposite Parties

Argued by:      

 

Sh.  Vishal Goel, Advocate for the complainant.

Sh.  Sanjeev Sharma, Advocate for the Opposite Parties.

 

Complaint case No.	:	104 of 2017
Date of Institution	:	03.02.2017
Date of Decision	:	05.07.2017

 

Ranbir Singh Sidhu S/o Sh. Tehal Singh Sidhu, r/o Country Homes, West South City, Ludhiana, currently residing at 822-222 Riverfront AVE SW, Calgary AB T2P 0X2, Canada.

……Complainant

V e r s u s

1. Emaar MGF Land Ltd., SCO No.120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.
2.  Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi - 110001, through its Managing Director/Authorized Signatory.

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

Argued by:      

 

Sh. Savinder Singh Gill, Advocate for the complainant.

Sh.  Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

              By this order, we propose to dispose of, following cases:-

1.	CC/71/2017	Gurjinder Singh	Vs.	M/s Emaar MGF Land Pvt. Ltd.
2.	CC/104/2017	Ranbir Singh Sidhu	Vs.	M/s Emaar MGF Land Ltd. & Anr.

2.           Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts, are the same.

3.           At the time of arguments, on 24.05.2017, it was agreed between Counsel for the parties, that facts involved in the aforesaid complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing a consolidated order.

4.           Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 71 of 2017, titled as “Gurjinder Singh Vs. M/s Emaar MGF Land Pvt. Ltd. & Anr.”.

5.           The facts, in brief, are that the complainant purchased apartment No.TVM H3-F05-504, Tower No.H3 in the project namely “The Views at Mohali Hills” measuring 1550 sq. ft. from the Opposite Parties for the consideration of Rs.45,09,215.51 vide Buyer’s Agreement dated 28.04.2011 (Annexure C-1). As per the Agreement, possession was to be delivered within a period of 36 months from the date of allotment with a grace period of 90 days but till date more than five years and nine months has been lapsed, the Opposite Parties failed to deliver possession of the apartment, in question, despite receipt of the huge amount of Rs.43,68,867/- and, as such, the Opposite Parties are liable to pay compensation, as per terms and conditions of the Agreement. The complainant visited the site and after seeing the development of the project, it was found that the completion of the apartment could not be completed in near future. 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.

6.           The Opposite Parties, in their joint 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 the complainant did not fall within the definition of “Consumer” as envisaged under the Consumer Protection Act, 1986, as he is permanent resident of Amloh and also mentioned address of Mohali in the head note of the complaint, as such, the flat is purchased by the complainant solely for speculation purposes. It was further stated that as per the Agreement, the Opposite Parties “endeavored” to handover possession of the unit within 3 years from the allotment alongwith a grace period of 90 days for applying and obtaining the completion/occupation certificate. It is well settled law that in cases of sale of immovable property, time is never regarded as the essence of the contract more so when there is penalty clause under the Agreement for any alleged delay. The term “proposes” duly indicated that there was no definitive commitment to hand over possession within 36 months, as the clause for delayed penalty in handing over of possession is duly stipulated in the Agreement. It was further stated that in case of seeking refund by the complainant, the forfeiture clause would be applicable. It was further stated that this Commission has no pecuniary jurisdiction to try this complaint. It was further stated that this Commission has no territorial jurisdiction to try and entertain this complaint, as the unit, in question, is situated at Mohali, Punjab and as per the Buyer Agreement only the Courts having territorial jurisdiction over the unit/property shall have the territorial jurisdiction.  It was admitted regarding booking of the unit and execution of the Agreement. It was further stated that unit No.TVM H3-F05-504 was provisionally allotted to the complainant vide letter dated 02.03.2011 (Annexure C-2). It was further stated that the structure work of Tower H has been completed and Opposite Parties are expediting internal finishing and possession of the said flat is expected to be handed over by September, 2017. It was admitted that the complainant paid the total amount of Rs.43,68,867/- in respect of the unit, in question, as is evident from statement of account (Annexure R-4). 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.

7.           The Parties led evidence, in support of their case.

8.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

9.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. 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 objection raised by Counsel for the Opposite Parties, being devoid of merit, is rejected.

10.         The objection taken by the Opposite Parties, to the effect that the complainant did not fall within the definition of “Consumer”, as per the Consumer Protection Act, 1986, as the complainant is resident of Amloh and has also mentioned a address of Mohali in the head note of the complaint and, as such, he purchased the unit in the project of the Opposite Parties solely for speculation purposes only. After going through the record, we do not find any merit in the contention of the Opposite Parties because the complainant in para No.7 of his complaint has clearly stated that the apartment was purchased by the complainant for his personal use. So, in view of the above averments of the complainant, it is clearly proved that the said apartment was purchased by him (complainant) exclusively for residential purposes.  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. Thus, in the absence of any cogent evidence, in support of the objection raised by the Counsel for the 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. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant for speculation purposes. 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 Counsel for the Opposite Parties in this regard, being devoid of merit, is rejected.

11.         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 them. In the instant case, it is evident from the record, that Unit Buyer’s Agreement (Annexure C-1) was executed between the parties on 28.04.2011, at Chandigarh. Not only this, the receipt/acknowledgment –cum-receipt (Annexures C-2 & C-3) and provisional allotment letter dated 02.03.2011 (Annexure R-2) annexed by the complainant was sent by the Opposite Parties from their Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017”. 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.

12.         Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.43,68,867/- alongwith interest @15% p.a. compounded quarterly; compensation to the tune of Rs.3 lacs, on account of mental agony and physical harassment and cost of litigation to the tune of Rs.50,000/-. 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. 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.”

              In view of above, this objection taken by the Opposite Parties that this Commission lacks pecuniary jurisdiction, being devoid of merit, fails and the same stands rejected.

13.         Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company shall “endeavour” to deliver possession of the unit within maximum period of 36 months, as such, time was not 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 maximum period of 36 months from the date of allotment i.e. latest by 01.03.2014, 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 complainant, 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, as such, time was,  unequivocally made the essence of contract.

              Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word tentative/ proposed 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. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, 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 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.

14.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.43,68,867/-, as claimed by him. It is an admitted fact that the complainant deposited an amount of Rs.43,68,867/-, as is evident from statement of account (Annexure R-4) and after receipt of the aforesaid huge amount, the Opposite Parties failed to deliver  actual physical possession of the unit, complete in all respects, to the complainant, within the stipulated period, as mentioned in the Agreement or even by the time when the complaint was filed. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

15.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.43,68,867/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the  Opposite Parties were charging heavy rate of interest (compounded @15% p.a.) as per Clause 20.1 of the Agreement, for the period of delay in making payment of installments.  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  complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.43,68,867/- alongwith interest @15% p.a., from the respective dates of deposit, till realization. 

16.         As far as the plea taken by the Counsel for the Opposite Parties, at the time of arguments, 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 it was ready with possession of the unit, complete in all respects, to be delivered to the complainant, by the stipulated date or

even by the time when the complaint was filed but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints, due to deficiency in the services of the Opposite Parties or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the Opposite Parties, that they were willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.

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

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

1. To refund the amount of Rs.43,68,867/- to  the  complainant, alongwith interest @15% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2.00 lacs, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, 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) shall carry penal interest @18% p.a.,  instead of @15% p.a. from the date of default, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

Complaint Case No.104 of 2017 titled ‘Ranbir Singh Sidhu Vs. Emaar MGF Land Ltd. & Anr.’

19.         In the present case, the complainant booked apartment No.L1-GF-GF03 in the project namely “The Views at Mohali Hills” situated at Sector 105, SAS Nagar, Mohali. The said apartment was allotted to the complainant vide allotment letter dated 11.03.2008 (Annexure C-1). Unit Buyer’s Agreement was executed between the parties at Chandigarh on 10.03.2008 (Annexure C-4). It is the admitted fact that the complainant paid the total amount of Rs.38,81,320/- in respect of the unit, in question, as is evident from statement of account (Annexure C-3). According to Clause 21.1 of the Agreement, possession of the said unit was to be delivered within a period of 36 months from the date of allotment and in case of failure, the Opposite Parties is liable to pay compensation for delay @Rs.5/- per sq. ft. per month of the super area to the complainant till the offer of possession. The complainant visited the site in December and January, 2017 but the Opposite Parties expressed their inability to hand over possession of the said unit. Even the Opposite Parties admitted in para No.5 of their written statement that they have already offered possession in two of the towers in the project and work is being expedited to handover the balance towers at the earliest. The Opposite Parties further admitted that the works upto electrical conducting in Tower L1 where the unit of the complainant is located has already been completed and internal plaster work is under progress and possession would be offered shortly.  So, it is clearly proved that the Opposite Parties are unable to deliver possession of the unit to the complainant, within the stipulated period, as mentioned in the Agreement or even by the time when the complaint was filed, which amounted to deficiency in service and indulgence into unfair trade practice.

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

1. To refund the amount of Rs.38,81,320/- to  the  complainant, alongwith interest @15% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2.00 lacs, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, 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) shall carry penal interest @18% p.a.,  instead of @15% p.a. from the date of default, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

21.         However, it is made clear that, if the  complainant(s), in both the aforesaid cases, 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 the complainant(s).

22.          Certified copy of this order be placed in Consumer Complaint No.104 of 2017.

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

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

Pronounced.

July 5, 2017.                                          Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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