Chandigarh

StateCommission

CC/201/2017

Smt. Dilpreet Kaur - Complainant(s)

Versus

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

Kabir Sarin, Adv.

22 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	201 of 2017
Date of Institution	:	08.03.2017
Date of Decision	:	22.08.2017

Smt. Dilpreet Kaur w/o Sh. Amanpreet Singh r/o #678, Sector 8 B, Chandigarh – 160018.

Sh.Amanpreet Singh s/o Late Sh. Inderjeet Singh r/o #678, Sector 8 B, Chandigarh – 160018.

……Complainants

V e r s u s

M/s Emaar MGF Land Private Ltd. through its Managing Director/Principal Officer, having its registered office at MGF House, 17-B, Asaf Ali Road, New Delhi – 110002.
M/s Emaar MGF Land Limited, SCO No.120-121, 1^st Floor, Sector 17-C, Chandigarh.

.... Opposite Parties

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER

Argued by:

Sh. Kabir Sarin, Advocate for the complainants.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

PER PADMA PANDEY, MEMBER

The facts, in brief, are that as lured by open proclamation through publication in the local newspapers & various advertisements and convinced by the tall claims made by the Opposite Parties, the complainants approached their office vide application dated 15.06.2007 through their real estate consultant namely M/s Volga Realtors Pvt. Ltd. On demand of the Opposite Parties, the complainants alongwith the said registration form, were called upon to clear an amount of Rs.17,25,000/- at the time of such registration. The Opposite Parties vide their correspondence dated 15.06.2007 informed the complainants that they had been provisionally allotted plot No.87 having an approximate area of 400 sq. yards in Augusta Greens, Sector 109 (Annexure C-1). The total sale consideration of the residential plot, in question, was Rs.54,00,472/-, which included EDC & PLC. Plot Buyer’s Agreement dated 11.07.2007 was executed between the parties (Annexure C-2). It was further stated that the complainants paid the entire sale consideration amounting to Rs.51,70,473/-, as demanded from time to time by the Opposite Parties. The Opposite Parties vide their correspondence dated 03.02.2009 were granted a rebate of 5% to the complainants upon the basic sale price (Annexure C-3). As per Clause 8 of the Agreement, possession was to be delivered within a period of two years from the date of execution of the Agreement but not later than three years i.e. latest by 11.07.2010. The complainants visited the office of the Opposite Parties on 04.05.2012 to seek clarification on the expected delay for possession but the same remained futile but the Opposite Parties admitted that they were unable to deliver actual possession of the plot, complete in all respects. It was further stated that the complainants received intimation of possession letter dated 19.09.2016 (Annexure C-5), whereby, the Opposite Parties have offered possession of plot No.250 measuring approximately 500 square yards in their project instead of the plot, as mentioned in the Agreement and demanded an amount of Rs.34,87,180/- qua final settlement of accounts. It was further stated that the complainants have neither executed any document nor consent qua change of their originally allotted residential plot bearing No.87, Sector 109, Mohali Hills, Mohali. 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 complainants, 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 further stated that this Commission has no territorial jurisdiction to try and entertain the complaint, as the property is located at Mohali and registered office of the Opposite Parties is at New Delhi and as per settled law, a company can be sued only at the place its registered office is located. It was further stated that this Commission has no pecuniary jurisdiction to try the complaint, as the claim together with interest and compensation exceeds Rs.1 crore. It was further stated that the complainants are not consumers, as per the Consumer Protection Act, 1986 because they are residents of House No.678 Sector 8B, Chandigarh, which apparently shows that they are already having house in their names and, as such, the plot, in question, was purchased by them especially for speculation purposes. It was further stated that the complaint was time barred having been filed after two years of alleged cause of action. It was further stated that the complainants have failed to apprise this Commission that they had agreed to relocate and upgrade the plot allotted to them. A meeting was held between Sh.Amanpreet Singh of Emaar MGF & the complainants on 02.06.2014 and as per the discussion, the complainants agreed to upgrade their plot to 500 sq. yard and the additional area was to be charged at the original allotted price. Subsequently, emails dated 10.06.2014 and 13.06.2014 were sent to the complainants updating the discussions held in the meeting dated 02.06.2014. Copies of the said emails are Exhibit OP-2 (Colly.). Subsequently, letter dated 30.08.2014 was sent to the complainants together with updated schedule of payments and Amended Agreement (Exhibit OP/3 (colly.). It was further stated that as per Clause 8 of the Agreement, the company shall “endeavour” to deliver possession. The word “endeavour” means to try/make effort. In the present case, intimation of possession was sent to the complainants on 09.06.2016 in respect of plot No.109-AP-250-500 but they failed to execute the amendment agreement, which was sent to them. It is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract more so when there is penalty clause under the Agreement for any alleged delay. It was further stated that the Opposite Parties are liable to pay compensation for delay, as per the Agreement. As such, the amount of Rs.13,60,582/- already credited in the account of the complainants, as is evident from statement of account (Exhibit OP/5). It was admitted that the complainants purchased the plot from M/s Volga Realtors Private Ltd.; execution of the Agreement and receipt of the amount of Rs.51,70,473/-. The original allottee booked the unit on 30.09.2006 and paid booking amount of Rs.17,25,000/-. The original allottee has been provisionally allotted unit No.109-AG-87-400 vide letter dated 15.06.2007. It was further stated that intimation of possession was sent to the complainants on 09.06.2016 and reminder sent to the complainants on 19.09.2016 & 07.03.2017 (Exhibit OP/6 colly.). It was further stated that the complainants having accepted alleged delay cannot at this stage seek refund and the same would amount to cancellation of contract and attract forfeiture clause. 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 complainants, filed rejoinder to the written statement of the Opposite Parties, wherein they 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. 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.

7. 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 complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that letters - Annexures C-3 to C-5 and receipts (Annexure C-6) were 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 complainants, 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.

8. Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. As per admitted facts, the complainants sought refund of amount paid i.e. Rs.51,70,473/- alongwith interest @9% p.a. from the time of various deposits till the time of refund; compensation to the tune of Rs.1,50,000/- for mental agony, harassment and punitive damages 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.

9. The objection taken by Counsel for the Opposite Parties is, to the effect that the complainants did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act because the complainants are residents of House No.678, Sector 8-B, Chandigarh, which apparently shows that they are already having house in their names. Even the complainants in para No.2 (e) of their complaint have clearly stated that they are currently residing at Chandigarh for work related purposes at their paternal family home. It was further stated that the complainants having been born and brought up in the city of Chandigarh, as they have numerous relations and friends in the tricity area, thus, required to have a permanent residence for the purposes of their independent residence for the education and upgrading of their children. It may be stated here that there is nothing, on the record, that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, 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 Counsel for the Opposite Parties, mere bald assertion that the complainants 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 complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.

10. 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 plot within maximum period of three years, 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 8 of the Agreement that possession of the plot will be delivered by the Opposite Parties, within a maximum period of three years, 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/plot , to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Parties were bound to deliver possession of the unit/plot, within a maximum period of three years from the date of execution of the same, 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 endeavour/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.

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

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

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

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

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

Aggrieved against the afore-extracted order passed by this Commission, the Opposite Parties filed First Appeal No.997 of 2016 in the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, wherein, the matter was settled between the parties on 08.11.2016, as per the Settlement Agreement.

It is pertinent to note that the Opposite Parties (Emaar MGF) filed appeal in another case i.e. First Appeal bearing No. 709 of 2016 titled as ‘Emaar MGF Land Limited Vs. Mandeep Saini’ before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, against the order of this Commission and the Hon'ble National Consumer Disputes Redressal Commission, New Delhi passed the order dated 14.09.2016, which reads thus :-

“x x x x xx

It is vehemently argued by Mr.Aditya Narain, learned counsel appearing for the Appellant that since the delay in delivery of possession of the flats in Sectors 104, 106, 108 and 109 is directly attributed to the sealing of the main access road to these Sectors by the Forest Department, one of the factors which weighed with the State Commission, falls within the ambit of force majeure clause in the agreement, there is no deficiency in service on the part of the Appellant in its alleged failure to deliver the possession of the subject flats in question by the committed time. He thus prays that ex parte ad interim stay may to be continued.

Prima facie, we are not convinced with the submission. Hence, without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant is still not in a position to deliver possession of the fully developed flats with proper access, to the Complainants, we direct that the Appellant shall deposit in this Commission the principal amount(s) deposited by the Complainants with them, within 6 weeks from today. On deposit of the said amount(s), it will be open to the Complainants to withdraw the said amount, on filing affidavits, undertaking to this Commission that they will refund the amount(s) withdrawn, if so directed at the time of final disposal of the Appeals. Subject to the said deposits, the operation of the remaining directions, regarding interest, compensation, etc., in the impugned order shall remain stayed.

X x x x x xx x”

From the afore-extracted order, it is clearly proved that Counsel for the Opposite Parties admitted before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the delay in delivery of possession to these Sectors i.e. Sectors 104, 106, 108 & 109 was due to the sealing of main access road by the Forest Department. It is clearly proved that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant i.e. Emaar MGF Land Limited is still not in a position to deliver possession of the fully developed flats with proper access, to the complainants i.e. till the passing of the afore-extracted order dated 14.09.2016. So, we are of the view that in the present case, the intimation of possession letter sent by the Opposite Parties is only a paper possession and not more than that.

12. The next question that falls for consideration, is, as to whether, the complainants were bound to accept offer of possession, in respect of the unit/plot, in question, when the same was offered to them vide letter dated 09.06.2016 (at page No.76 of the complainant’s documents) and that too, after a huge delay of about six years, in the absence of any force majeure circumstances. It is pertinent to note that possession of the unit was to be delivered to the complainants within a maximum period of 3 years from the date of execution of the Agreement i.e. latest by 10.07.2010. However, the Opposite Parties sent letter of offer of possession of different unit only vide letter dated 09.06.2016 to the complainants, after a huge delay of about 6 years and that was only a paper possession, without completion of formalities, as per terms and conditions of the Agreement. It may be stated here that non-delivery of possession of the unit, in question, complete in all respects, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Parties that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon`ble National Commission, held as under:-

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

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

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

Moreover, the judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided on 03.07.2015.’ The relevant portion of the judgment reads thus :-

“16. Admittedly, appellants did not offer possession of the apartment within the prescribed period, in terms of Clause 21 of the “Apartment Buyer’s Agreement”, Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering service but are also guilty of indulging into unfair trade practice. The appellants in the present case are enjoying the hard earned money of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.”

The aforesaid appeal was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi with punitive damages. Aggrieved against the aforesaid order, Emaar MGF Land Limited filed Special Leave to Appeal (C) No(s). 32492/2015 before the Hon’ble Supreme Court of India and the same was also dismissed.

In view of the above, it is held that since there was a material violation on the part of the Opposite Parties, in not handing over physical possession of the unit, complete in all respects, within the stipulated date, as mentioned in the Agreement, the complainants was at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

13. The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. It may be stated here that the Opposite Parties admitted that offer of possession of plot No.109-AP-250-500 was made vide letter dated 19.09.2016 (Annexure C-5) instead of plot No.109-AG-87-400, which was booked by the complainants. Even offer of possession of the earlier plot, in question, could not be made till date, and on the other hand, amount deposited was also not refunded to them, as such, there is continuing cause of action, in their favour, in view of principle of law laid down, in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

14. The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.51,70,473/-, deposited by them. It is an admitted fact that the Opposite Parties are unable to deliver possession of the unit, in question, complete in all respects, within the stipulated period, as mentioned in the Agreement or even by the time when the complaint was filed. The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the plot purchased by them. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

15. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants. It is no doubt true that an amount of Rs.51,70,473/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. 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 3 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 complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.51,70,473/-alongwith interest @12% p.a., from the respective dates of deposits till realization.

16. As far as the plea taken by the Opposite Parties, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that they were ready with possession of the plot, to be delivered to the complainants, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints due to deficiency in service rendered by 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, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per 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. Since we are refunding the whole deposited amount to the complainants alongwith compensation and litigation expenses, therefore, we are of the view that they are not entitled to claim any other relief, as claimed by her in the prayer clause.

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

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

To refund the amount Rs.51,70,473/-, to the complainants, alongwith interest @12% p.a., from the respective date of endorsement of the unit onwards.
To pay compensation, in the sum of Rs.1,50,000/-, (as prayed for) for causing mental agony and physical harassment, to the complainants.
To pay cost of litigation, to the tune of Rs.50,000/- (as prayed for) to the complainants.
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 @15% p.a., instead of @12% p.a., from the respective date of endorsement of the unit onwards, and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

20. However, it is made clear that, if the complainants, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants.

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

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

Pronounced.

August 22, 2017. Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

Sd/-

[DEV RAJ]

MEMBER

Sd/-

(PADMA PANDEY)

MEMBER

Chandigarh

StateCommission

CC/201/2017

Smt. Dilpreet Kaur - Complainant(s)

Versus

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

Kabir Sarin, Adv.

22 Aug 2017

ORDER

V e r s u s

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