Chandigarh

StateCommission

CC/34/2018

Aashish - Complainant(s)

Versus

M/s Emerging India Housing Corporation (P) Ltd. - Opp.Party(s)

Mahesh Dheer, Adv.

29 Jan 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	34 of 2018
Date of Institution	:	19.01.2018
Date of Decision	:	29.01.2019

 

1. Aashish S/o Sh.Ashok Kumar, 1/3, Bijai Palace, Mandi Town, Tehsil Sadar, Himachal Pradesh-175001.
2. Mrs.Anshu W/o Aashish, 1/3, Bijai Palace, Mandi Town, Tehsil Sadar, Himachal Pradesh-175001.

……Complainants

V e r s u s

1. M/s Emerging India Housing Corporation (P) Ltd., through its Managing Director, having its Corporate Office at SCO 46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh -160009.
2. Gurpreet Singh Sidhu, Managing Director, M/s Emerging India Housing Corporation (P) Ltd., SCO 46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh -160009
3. Axis Bank, SCO 350-352, 2nd Floor, Sector 34A, Chandigarh, through its Branch Manager.

.….. Opposite Parties.

Argued by: Sh.Mahesh Dheer, Advocate for the complainants.

                 Sh.J.S. Rattu, Advocate for opposite parties no.1 & 2.

                 Sh.Gaurav Gupta, Advocate for opposite party no.3.

===================================================

Complaint case No.	:	154 of 2018
Date of Institution	:	09.04.2018
Date of Decision	:	29.01.2019

 

Samundri Devi wife of Sh.Babu Lal aged 56 years, resident of Flat No.101, Tower No.11, Royale Estate, Zirakpur, Punjab.

……Complainant

V e r s u s

1. M/s Emerging India Housing Corporations P. Ltd., having its Registered Office at SCO 46-47, First Floor, Sector 9-D, Chandigarh.
2. M/s Emerging Valley P. Ltd., having its Registered Office at SCO 46-47, First Floor, Sector 9-D, Chandigarh.
3. M/s Emerging India Real Assets, having its Registered Office at SCO 46-47, First Floor, Sector 9-D, Chandigarh.
4. Gurpreet Singh Sidhu, Managing Director M/s Emerging India Housing Corporations P. Ltd., having its Registered Office at SCO 46-47, First Floor, Sector 9-D, Chandigarh.

.….. Opposite Parties.

Argued by: Sh.Raj Kumar Sharma, Advocate for the complainant.

                 Sh.J.S. Rattu, Advocate for the opposite parties.

===================================================

Complaint case No.	:	284 of 2018
Date of Institution	:	09.07.2018
Date of Decision	:	29.01.2019

 

Ramandeep Singh son of Shri Itwari Singh, #2374 DMC, Sector 38 (West), Chandigarh (U.T.).

……Complainant

V e r s u s

1. Emerging Valley Pvt. Ltd., SCO 46-47, First Floor, Sector 9, Madhya Marg, Chandigarh, through its Managing Director/Authorized Signatory.
2. Emerging Valley Pvt. Ltd., SCO 46-47, First Floor, Sector 9, Madhya Marg, Chandigarh, through its Director Sh.Gurpreet Singh Sidhu.
3. Emerging Valley Pvt. Ltd., SCO 46-47, First Floor, Sector 9, Madhya Marg, Chandigarh, through its Managing Director, through its Director Sh.Harvinder Singh Behl.

.….. Opposite Parties.

Argued by: Sh.Jatinder Pal Singh, Advocate for the complainant.

                 Sh.J.S. Rattu, Advocate for the opposite parties

===================================================

Complaint case No.	:	285 of 2018
Date of Institution	:	09.07.2018
Date of Decision	:	29.01.2019

 

Itwari Singh son of Sh.Piara Singh, #2374 DMC, Sector 38 (West), Chandigarh (U.T.).

……Complainant

V e r s u s

1. Emerging Valley Pvt. Ltd., SCO 46-47, First Floor, Sector 9, Madhya Marg, Chandigarh, through its Managing Director/Authorized Signatory.
2. Emerging Valley Pvt. Ltd., SCO 46-47, First Floor, Sector 9, Madhya Marg, Chandigarh, through its Director Sh.Gurpreet Singh Sidhu.
3. Emerging Valley Pvt. Ltd., SCO 46-47, First Floor, Sector 9, Madhya Marg, Chandigarh, through its Managing Director, through its Director Sh.Harvinder Singh Behl.

.….. Opposite Parties.

Argued by: Sh.Jatinder Pal Singh, Advocate for the complainant.

                 Sh.J.S. Rattu, Advocate for the opposite parties

===================================================

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

 

 

 

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

                MRS.PADMA PANDEY, MEMBER.

                MR.RAJESH K. ARYA, MEMBER

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we propose to dispose of the aforesaid four consumer complaints. Arguments were heard in common, in the said cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In all the complaints, the complainants have sought refund of the amount paid towards their respective unit(s)/plot(s) in the respective project(s) of the opposite parties, alongwith interest, compensation etc. At the time of arguments, on 09.01.2019, it was agreed by the contesting parties, that, in view of above, these complaints can be disposed of, by passing a consolidated order.

2.         Under above circumstances, to dictate order, facts are being taken from Aashish and another Vs. M/s Emerging India Housing Corporation (P) Ltd., and ors. consumer complaint bearing no. 34 of 2018. This complaint has been filed by the complainants, seeking refund of amount of Rs.17,65,350/- paid by them, on different dates, during the years 2012 to 2016, to opposite parties no.1 and 2, towards purchase of flat bearing No.H-304, in their project, namely ‘Emerging Heights-III”, Sector 115, Greater Mohali, Punjab. It was specifically stated that despite the fact that opposite parties no.1 and 2 had received substantial amount aforesaid, against total sale consideration of Rs.32,70,000/-, they failed to offer and deliver possession of the unit, by December 2015 i.e. within a period of 36 months from the date of allotment thereof, as committed vide Clause 12 of the allotment letter dated 14.12.2012, for want of construction and development at the project site.  Various requests made in the matter, vide letters and physical visits, requesting opposite parties no.1 and 2 to deliver possession of the unit or to refund the amount paid, did not yield any result. It was further stated that, besides as above, the complainants were also caused financial loss, as they have been paying monthly installments to opposite party no.3, from which they have obtained home loan, for making payment towards price of the said unit, yet, they are empty handed.

                By stating that the aforesaid act and conduct of opposite parties no.1 and 2, amounted to deficiency in providing service and adoption of unfair trade practice, the present complaint has been filed by the complainants, seeking refund of amount paid, alongwith interest, compensation etc.

3.         The complainants had earlier filed consumer complaint bearing no.89 of 2016 before this Commission, which was transferred to the District Forum-II, Chandigarh (in short, the Forum), vide order dated 28.07.2016, for want of pecuniary jurisdiction. Miscellaneous Application bearing No.310 of 2016, filed by the complainants, recalling the order dated 28.07.2016 was dismissed by this Commission, vide order dated 20.09.2016. As per the complainants, First appeal bearing No.1444 of 2016 filed before the National Commission against order dated 28.07.2016 is still pending.  (However, the said Appeal has been dismissed as withdrawn by the appellants/complainants, vide order dated 25.10.2018, which fact has been confirmed by this Commission, from the official website of the National Commission). However, while relying upon judgment passed by the Hon’ble National Commission, titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016, wherein it was held that for determining the pecuniary jurisdiction, the Consumer Fora has to consider the value of the goods and compensation claimed and not the reliefs claimed alongwith compensation, and also in the present case, the value of the unit, in question, was more than Rs.20 lacs i.e. Rs.32,70,000/-, the Forum, as such, while giving liberty to the complainants, to file the said consumer complaint before the appropriate Fora having pecuniary jurisdiction, dismissed it (consumer complaint bearing RBT No.562 of 2016), vide order dated 31.07.2017, being not maintainable, as a result whereof, the present complaint has been filed before this Commission.
4.         Upon notice, reply was filed by opposite parties no.1 and 2, wherein, they took certain preliminary objections, to the effect, that the complaint was liable to be dismissed, because as per Clause 36 of the Allotment Letter, any dispute, with regard to the unit, in question, was to be referred to an Arbitrator; that this Commission has no territorial jurisdiction, to entertain and decide this complaint; that the complainants being investors, did not fall within the definition of consumers, as provided under the Act; Registered Office of opposite parties no.1 and 2 has not been made a party to the complaint; and after filing complaint, it was further required of the complainants to file evidence but it has not so been done, in the present case.  
5.         On merits, purchase of the unit, in question; issuance of allotment letter, and also payments made by the complainants, as mentioned in the complaint, were not disputed. It was stated that possession of the unit was to be delivered within a period of 36 months, after obtaining all necessary approvals and permissions from the Competent Authority, as such, no cause of action has arisen to the complainants, to file this compliant. It was averred that the unit in question is ready for possession and the same will be delivered, on making balance payment by the complainants. It was pleaded that the complainants had paid an amount of Rs.17,65,350/- against total sale consideration of Rs.34,92,700/-. They were defaulters in making payment towards price of the said unit, and this fact is evident from their own version that out of the total sale consideration, they have paid only about 45% thereof, and, as such, they cannot claim any relief, by way of filing this complaint. Even then, if refund is ordered, forfeiture clause, as contained in terms and conditions of the allotment letter, be made applicable. It was stated that the complainants have approached this Commission, with unclean hands and have not disclosed the material facts. It was further stated that neither there was any deficiency, in rendering service, on the part of opposite parties no.1 and 2, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
6.         Opposite party no.3 in its written reply stated that it has no concern, with grievance of the complainants qua non delivery of possession of the unit, in question. It was admitted that the complainants were sanctioned housing loan vide letter dated 01.07.2013, for making payment towards price of the said unit. Prayer was made to dismiss complaint against opposite party no.3.
7.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in written version of opposite parties no.1 and 2.  
8.         The contesting parties led evidence in support of their cases.
9.         We have heard the contesting parties, and have gone through the evidence, and record of the cases, carefully. 
10.         First, we will deal with the objection raised by opposite parties no.1 and 2, that in the face of existence of provision in the allotment letter, 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 objection has been raised in the written statement filed by opposite parties no.1 and 2, by placing reliance on Clause 36 contained in the allotment letter. It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018.

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

11.         The next question that falls for consideration, is, as to whether, this Commission has got territorial jurisdiction to entertain and decide this complaint or not. It may be stated here that according to Section 17 (2) (b) of the Consumer Protection Act, 1986 (in short the Act) a complaint can be filed in the State Commission, within the limits of whose jurisdiction, any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution. Further, as per Section 17 (2) (c) of the Act, a complaint can also be filed in the State Commission, where the cause of action, wholly or in part, arises to the party, filing the complaint. It is significant to mention here that perusal of almost all the documents placed on record including the allotment letter containing details terms and conditions in respect of the unit, in question, reveal that the same were issued by opposite parties no.1 and 2, in favour of the complainants, from their  Corporate Office at Chandigarh i.e. SCO 46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh-160009. Payment receipts placed on record also bear the said address. The said address of the Company is also found mentioned in the Tripartite Agreement dated 23.04.2013, Annexure C-5, executed between the parties, vide which the complainants raised housing loan, for making payment towards price of the said unit. Therefore, in our considered view, since as per the documents, referred to above, cause of action, accrued to the complainants, within the territory of Chandigarh, as such, the instant complaint can be entertained and adjudicated upon by this Commission, at Chandigarh, in view of the provisions of Sections 17(2)(b) and 17 (2) (c) of the Act. Plea taken by opposite parties no.1 and 2, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 
12.         The next question, that falls for consideration, is, as to whether, the complainants are speculators, and that they have purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of consumers, as defined by Section 2 (1) (d) (ii) of the Act, as alleged by opposite parties no.1 and 2. It may be stated here that there is nothing, on record to show that the complainants are the property dealers and are indulged in sale and purchase of property, on regular basis. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties no.1 and 2, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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. Not only as above, under similar circumstances, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

 

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 opposite parties no.1 and 2, in their written reply, therefore, being devoid of merit, is rejected.  

13.         It is evident from record, that against total sale consideration of Rs.32,70,000/- fixed towards price of the said unit, the complainants had paid an amount of Rs.17,65,350/- to opposite parties no.1 and 2. It was vehemently contended by Counsel for the complainants that despite the fact that the unit, in question, had been booked as far as back in the year 2012, allotment whereof was made on 14.12.2012 and vide Clause 12 of the allotment letter, it was  in a very candid manner committed by opposite parties no.1 and 2 that possession thereof will be delivered within a period of 36 months therefrom (allotment), i.e. on or before 13.12.2015, it was not so done, for want of construction; development at the project and even today, they are not in a position to do so. To substantiate the said contention, the complainants have placed on record photographs Annexure C-11 depicting that construction at the spot is not complete. On the other hand, Counsel for opposite parties no.1 and 2 contended with vehemence that the project is fully developed and construction of the unit is complete and that they are ready to deliver possession thereof to the complainants, on making remaining payment by them (complainants). In this manner, Counsel for both the parties, tried to convince their respective stands, before this Commission. As such, under these circumstances, the onus to prove that the construction of the unit is complete and that the area/site, in question, is fully developed, is on the builder/opposite parties no.1 and 2. It was also 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. In the present case, it is very strange that not even a single document has been placed on record, by opposite parties no.1 and 2, to prove that construction of the unit(s) is complete; the project is fully developed and that they are actually ready for delivery of possession thereof to the complainants. In case, the unit is ready and all the development activities had been undertaken at the project site, 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 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 and construction activities, had been undertaken and completed at the site or not, but they failed to do so. At the same time, opposite parties no.1 and 2 were also required to produce on record, a copy of the occupation and partial/final Completion Certificates (if obtained), having been issued by the Competent Authorities, which could be said to be best evidence, to prove their case, but they miserably failed to do that also. It is settled law that in the absence of occupation and completion certificates, the builder cannot offer and deliver possession to the allottees. The plea raised by opposite parties no.1 and 2, that they are ready with the unit to be delivered to the complainants, and that too in the absence of any documentary evidence in that regard, has no legs to stand and is accordingly rejected.  
14.         It has also come on record that the project was marketed and sold, without possessing requisite permissions. Opposite parties no.1 and 2 themselves have placed on record copy of letter dated 03.07.2014, whereby they were granted ‘NOC’ from the Ministry of Defence, New Delhi, for starting construction in the said project. Furthermore, it is evident from letter Annexure R-9 colly., that Environmental Clearance for construction in the said project was obtained only on 05.06.2015 i.e. after about more than three years of selling unit to the complainants. To launch the project, without getting necessary permissions/approvals, would amount to unfair trade practice on the part of the builder. Under similar circumstances, the National Commission in a case titled as Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.765 of 2016, decided on 30.03.2016, held as under:-

“We are unable to persuade ourselves to agree with the ld. counsel.  While affirming the order passed by the District Forum and commenting and deprecating the conduct of the Opposite Parties in the complaint, in launching the project and selling the farmhouses, even without obtaining sanction/approval from the competent authority, the State Commission has observed as follows:-

If a marketing agency sells out a project, for which, no approvals/sanctions have been granted by the Govt. Authorities, the said agency has to face the music and consequences of duping the gullible buyers, of their hard-earned money. In the public notice, it has specifically been mentioned by the GMADA that respondent no.2 and appellant no.1 are the sister concern. It is also apparent on record that before appellant no.1 started marketing the project, not even an application has been filed by respondent no.2, to get approval/sanction from the competent authorities, to launch the project. The information supplied vide letter dated 26.08.2014, referred to above, clearly states that not even a single application qua granting sanction to the project, has been received and dealt with, by the Competent Authority. In connivance with each other, the appellants and respondent no.2 committed a criminal offence of cheating. As per established law, builder cannot sell its property, unless and until proper approvals/sanctions have been obtained by it, from the Competent Authorities. It appears from the reading of documents on record that instead of selling a unit in a project, respondent no.2 in a very arbitrary manner, sold its share in a joint land measuring approx. 3807 acres, bearing hadbast No.326, Khewat No.92, Khatauni no.254-352, at Village Mirzapur, District Mohali, Punjab. There is nothing on record that said land was ever partitioned.

We are in complete agreement with the view taken by the State Commission. ”

Similar view was reiterated by the National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018,. Relevant part of the said order reads thus:-

“…….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers…”

In the present case also, there is a complete violation of the provisions of the PAPRA and the said violation amounts to adoption of an unfair trade practice, which is glaring and vivid on the part of opposite parties no.1 and 2.

15.         At the same time, it is also held that non-delivery of possession of the unit(s)/plot(s), in question, by the stipulated date, is a material violation on the part of opposite parties no.1 and 2/builder and amounts to deficiency in providing service and adoption of unfair trade practice. It is settled law that when there is a material violation on the part of the builder, in not handing over possession of units/plots by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated date (in the present case not even offered) and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

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

 

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

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

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

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

 

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

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

Under above circumstances, it is held that since there was a material violation on the part of opposite parties no.1 and 2, in not offering and handing over possession of the unit, in question, even the date, when arguments were heard in this complaint, as such, the complainants are entitled to get refund of amount paid by them.

16.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted in favour of the complainants. It has been proved on record that an amount of Rs.17,65,350/- was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by opposite parties no.1 and 2 for their own benefit. There is no dispute that for making delayed payments, opposite parties no.1 and 2 were charging heavy rate of interest @18% p.a.,  as per Clause 6 of the Allotment Letter, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest, from the respective dates of deposits till realization.    
17.         Now coming to the plea taken by opposite parties no.1 and 2, to the effect that since the complainants had stopped making payment and have paid only Rs.17,65,350/- out of the total sale consideration, as such, they are defaulters and, in case, they still wanted refund, forfeiture clause will be applicable. In this regard, it is reiterated that once opposite parties no.1 and 2 have failed to prove that they had completed the construction of unit/development at the project site, by the stipulated date or even by the time, this complaint was filed, as such, they cannot be heard to raise such a plea. Even otherwise, once the complainants, after making payment of Rs.17,65,350/-, did not see any construction and development activities at the project site, the payment of further installments was rightly stopped by them, in view of principle of law laid down by the Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the unit by the stipulated date, it cannot expect the allottee(s) to go on paying instalments to it. Similar view was also taken by the National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser.

                It is not the case of opposite parties no.1 and 2 that they were ready with delivery of possession of the unit, in question, by the stipulated date, complete in all respects, after obtaining occupation and completion certificates from the Competent Authorities, but the complainants failed to take over the same, for some personal/financial constraints and are seeking refund of the amount paid. Had this been the case of opposite parties no.1 and 2, the matter would have been different and in those circumstances, it would have been held that the complainants are entitled to refund of the amount paid, after deductions, as per law. In this view of the matter, plea taken by opposite parties no.1 and 2 that, in case, this Commission orders refund of the amount paid, they are entitled to forfeiture of the earnest money, being devoid of merit is rejected.

18.         As far as the objection taken regarding non-impleading of Registered Office in this consumer complaint is concerned, it may be stated here that there are ample documents on record, which reveal that the complainants were dealing directly with Corporate Office of the Company at Chandigarh, of which, opposite party no.2 is the Managing Director. Once, the payments in respect of the unit, in question, were made at the said Corporate Office at Chandigarh; all the correspondence took place between the parties, with the said Office, as such, objection taken in this regard, being devoid of merit, stands rejected.

                In this view of the matter, it cannot be said that the complaint was bad for non-joinder of necessary parties.

19.         An objection was also taken by opposite parties no.1 and 2 to the effect that since evidence has not been filed by the complainants, as such, the complaint is liable to be dismissed on this ground alone. We do not agree with the objection raised. Perusal of record reveals that the complainants have filed their evidence by way of affidavit. On the other hand, opposite parties no.1 and 2 have also filed their evidence by way of affidavit which has been marked by them as Annexure R-A. Despite the fact that the complainants and opposite parties no.1 and 2 have led their evidence, by way of respective affidavit(s), even then during proceedings of this complaint, this Commission further gave them opportunity to file any additional evidence/affidavit, which they did not prefer. Even otherwise, it is significant to add here that the Consumer Protection Act, 1986, is a beneficial legislation, to provide speedy, inexpensive and hassle-free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. It was also so said by the Hon’ble Supreme Court of India, in the case of V. Kishan Rao  Vs, Nikhil Super Speciality Hospital and another, CIVIL APPEAL NO.2641_ OF 2010, (Arising out of SLP(C) No.15084/2009), decided on  March 8, 2010. Relevants contents of the said order reads thus:-

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

 In view of above, objection taken by opposite parties no.1 and 2, stands rejected.

20.         In connected consumer complaints bearing no.284 of 2018 and 285 of 2018, objections were also taken by the Company/opposite parties, with regard to pecuniary jurisdiction and also that the complainant(s) have wrongly impleaded the Managing Director/Director in these complaints, in their personal capacity despite the fact that dispute, if any, was with the Company only. This objection was taken by the opposite parties in connected consumer complaint bearing No.154 of 2018 also.

                First, we will deal with the objection taken with regard to pecuniary jurisdiction. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  Relevant part of the said order reads thus:-

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

In these cases, total value of the plot(s), in question, i.e. Rs.22.50 lacs each, plus compensation claimed by way of interest @18% p.a. on the deposited amount of Rs.4.50 lacs and also Rs.4 lacs, claimed as compensation for mental agony; physical harassment etc., if taken into consideration, it exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide this complaint. Objection taken by the opposite parties/Company, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

                Now coming to the objection taken with regard to impleading of Managing Director and Director, as necessary parties to these complaints, in their personal capacity, it may be stated here that it is not the case of the Company that the above-named persons are not the Managing Director/ Directors of the Company. As such, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the Company. A similar controversy arose for determination before the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017, wherein, it was held as under:-

“From the material on record, it is evident that the OP-2 is the Chairman of the Company whereas the OP-3 is the Chief Executive Officer-cum-M.D. of the said company.  Evidently, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the company.  By virtue of their office, they can directly influence any decision regarding relief to be granted to the complainant, as asked for in the consumer complaint.  It is held, therefore, that the State Commission has rightly dismissed the interim application, rejecting the plea of the appellants to delete the name of OP-2 & OP-3 from the array of parties.  The impugned order passed by the State Commission is, therefore, upheld and the appeal is ordered to be dismissed with no order as to costs.”

               

In view of above, objection raised by the opposite parties/Company stands rejected.

21.         No other point, was urged, by the contesting parties.
22.         For the reasons recorded above, all the four complaints are partly accepted, with costs, in the following manner:-

In consumer complaint bearing no. 34 of 2018, opposite parties no.1 and 2 are jointly and severally directed as under:-

1. To refund the amount of Rs.17,65,350/- to the complainants, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.75,000/-, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.25,000/- to the  complainants.
4. Complaint against opposite party no.3 is dismissed with no order as to cost.
5. However, it is made clear that, since the complainants have admittedly availed loan facility from opposite party no.3, for making payment of installments towards the respective unit, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).

 

In consumer complaint bearing no.154 of 2018, opposite parties no.1 to 4 are jointly and severally directed as under:-

1. To refund the amount of Rs.11,76,650/- to the complainant, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.50,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.22,000/- to the complainant.

 

In consumer complaint bearing no.284 of 2018, opposite parties no.1 to 3 are jointly and severally directed as under:-

1. To refund the amount of Rs.4.50 lacs to the complainant, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.25,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.11,000/- to the complainant.

 

In consumer complaint bearing no.285 of 2018, opposite parties no.1 to 3 are jointly and severally directed as under:-

1. To refund the amount of Rs.4.50 lacs to the complainant, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.25,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.11,000/- to the complainant.

23.         The payment of awarded amounts, in the manner ordered above,  mentioned at sr.nos.(i) to (iii), in the respective complaints, shall be made, within a period of 02 (two) months from the date of receipt of respective certified copies of the order, failing which, the amount mentioned at sr.no.(i) thereafter, shall carry penal interest @15% p.a., instead of @12%, and interest @12 % p.a., on the amounts mentioned at sr.nos.(ii) and (iii), respectively, from the date of filing of respective complaints, till realization.
24.         However, it is made clear that, if the complainants, in connected consumer complaints, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
25.         Certified Copies of this order be sent to the parties, free of charge and copy thereof be placed in connected case files also.
26.         The files be consigned to Record Room, after completion.

Pronounced.

29.01.2019

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 

Rg.