Chandigarh

StateCommission

CC/142/2018

Mohinder Partap Monga - Complainant(s)

Versus

M/s Emerging India Real Assets (P) Ltd. - Opp.Party(s)

Deepak Aggarwal Adv.

05 Mar 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	142 of 2018
Date of Institution	:	05.04.2018
Date of Decision	:	05.03.2019

 

Mohinder Partap Monga son of Sh.Pyare Lal, aged about 71 years, resident of C/o Monga Nursing Home, Faridkot Road Kotakpura, District Faridkot (Pb).

……Complainant

V e r s u s

1. M/s Emerging India Real Assets (P) Ltd., SCO No.46-47, Floor Sector 9-D, Chandigarh, through its Managing Director.
2. M/s Emerging India Housing Corporation Pvt. Ltd., SCO No.46-47, Floor Sector 9-D, Chandigarh, through its Managing Director.
3. M/s Emerging Valley Pvt. Ltd., SCO No.46-47, Floor Sector 9-D, Chandigarh, through its Managing Director.

              .... Opposite Parties

 

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

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

 

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

Complaint case No.	:	143 of 2018
Date of Institution	:	05.04.2018
Date of Decision	:	05.03.2019

 

Mohinder Partap Monga son of Sh.Pyare Lal, aged about 71 years, resident of C/o Monga Nursing Home, Faridkot Road Kotakpura, District Faridkot (Pb).

……Complainant

V e r s u s

1. M/s Emerging India Real Assets (P) Ltd., SCO No.46-47, Floor Sector 9-D, Chandigarh, through its Managing Director.
2. M/s Emerging India Housing Corporation Pvt. Ltd., SCO No.46-47, Floor Sector 9-D, Chandigarh, through its Managing Director.
3. M/s Emerging Valley Pvt. Ltd., SCO No.46-47, Floor Sector 9-D, Chandigarh, through its Managing Director.

              .... Opposite Parties

 

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

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

 

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

Complaint case No.	:	59 of 2018
Date of Institution	:	09.02.2018
Date of Decision	:	05.03.2019

 

Dr.Neelam Verma daughter of Karan Singh, resident of House No.138, MDH PGI MER Sector 12, Chandigarh at present C-5/12, HIMS, Swami Ram Nagar, Jolly Grant, Dehradun-248140.

……Complainant

V e r s u s

1. Emerging Valley Pvt. Ltd., Registered Office, B-57, Lower Ground South Extension, Part-II, New Delhi-49, through its Managing Director/Authorized Signatory.
2. Emerging Valley Pvt. Ltd., (A unit of Emerging India, Housing Corporation (P) Ltd.), through its Authorized Signatory, SCO No.46-47, 1^st Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh.

              .... Opposite Parties

 

Argued by:Sh.Sunil Mallan, 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 three consumer complaints. Arguments were heard in common, in these cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. During arguments, in all the consumer complaints, Counsel for the complainant(s), confined the prayer qua refund of the amount paid by the complainant(s), towards price of their respective plots/flats, alongwith interest, compensation etc. At the time of arguments, on 14.02.2019, it was agreed by the contesting parties, that, in view of above, all the three complaints can be disposed of, by passing a consolidated order.

2.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.142 of 2018 titled as Mohinder Partap Monga Vs. M/s Emerging India Real Assets (P). Ltd. and others. This complaint has been filed by the complainant seeking refund of entire amount paid, towards price of the plot measuring 200 square yards @Rs.15,500/- per square yard, booked by him, as far as back in 2011, in the project of the opposite parties namely ‘Emerging Valley’, Kharar Landran-Banur Road, Mohali, Punjab. It is the case of the complainant that despite the fact that the entire sale consideration towards plot, in question, to the tune of Rs.26,35,000/- had been paid by him before January 2013, yet, actual physical possession thereof, was never delivered to him. It is further case of the complainant that at the time of allotment of plot, vide letter dated 07.02.2012 Annexure C-1, the opposite parties also offered buyback option @18,000/- per square yard, after two years from the date of draw of lots i.e. from 03.12.2011. Since the complainant had made timely payment of entire sale consideration to the tune of Rs.26,35,000/-, as such, the opposite parties vide letter dated 24.01.2013 Annexure C-2 informed him that he is entitled for receiving guaranteed return of Rs.26,350/- per month, till the date of offer of possession of the plot, in question. However, the said amount of Rs.26,350/- was paid for one year starting from February 2013 to January 2014, but, thereafter, the opposite parties stopped paying the same.  When, neither possession of the plot was offered to the complainant nor payment of Rs.26,350/- per month, was paid by the opposite parties after January 2014, he, vide letter dated 11.08.2014 Annexure C-4, requested them to honour buyback offer or in the alternative to start paying the amount of Rs.26,350/- per month, referred to above, but to of no avail. Number of visits made to the office of the opposite parties, in the matter, did not yield any result. On the other hand, the opposite parties vide letters dated 06.11.2017 and 28.11.2017 Annexures C-8 and C-9 respectively, offered possession of the plot, in question, yet, when the complainant visited the project site, it was found that the same is not habitable. Basic amenities such as roads, electricity etc. were not in existence. Necessary documents pertaining to the plot, in question, i.e. Map showing location of the plot; copy of lay out plan etc. were not provided to the complainant. Matter was brought to the knowledge of the opposite parties, in writing, but to of no avail. On 06.03.2018, the complainant visited the office of the opposite parties, with a request to refund the amount paid alongwith promised amount of buyback etc. which came around Rs.36 lacs, however, they refused to do so. Hence this complaint.
3.         Written reply was filed by opposite party no.3 on 12.09.2018. In para no.2 of its reply filed, it was stated by opposite party no.3 that, in case, this Commission comes to the conclusion that opposite parties no.1 and 2 are also liable to be impleaded in the present complaint being necessary parties, then the same (reply and evidence), may be treated on their behalf also. This Commission is of the considered opinion that the reply/evidence filed by opposite party no.3 should also be considered on behalf of opposite parties no.1 and 2 also, for the reasons, which would be recorded in succeeding part of this order.
4.         In the written reply filed, it was stated that the complainant has approached this Commission, with unclean hands and has not disclosed the material facts. He is an investor. He has purchased another unit, in the project of the opposite parties, for which separate complaint is pending adjudication before this Commission. Apart from that, he is also having his own house at Faridkot, address whereof has been mentioned in head note of this complaint. Under these circumstances, he did not fall within the definition of consumer, as provided under the Act. It was averred that since Registered Office of the opposite parties has not been made a party to this complaint, as such, the complaint is liable to dismissed on this ground alone. It was pleaded that after filing the complaint, it was further required to file evidence by way of affidavit, but no such opportunity has been granted by this Commission.

                On merits, purchase of the plot, in question; issuance of allotment letter, and also payment of Rs.26,35,000/-,  made by the complainant, as mentioned in the complaint; offer of buyback option of the said plot @18,000/- per square yard, after two years from the date of draw of lots i.e. from 03.12.2011; offer of payment of guaranteed return of Rs.26,350/- per month, till the date of offer of possession of the plot, in question, were not disputed. It was pleaded that since it was opposite party no.3, with which, the entire transaction in respect of sale of the plot, in question, took place, as such, complaint filed against opposite parties no.1 and 2 is not maintainable. Despite the fact that complainant was paid guaranteed return of Rs.26,350/- per month for the period from January 2013 to January 2015 i.e. totaling Rs.5,92,875/-, still he is seeking relief with regard to buyback offer and claiming Rs.36 lacs alongwith interest, which is hopelessly time barred.  He ceases to be a consumer once he accepted the option of buyback, as it does not come under the purview of service. It was averred that the complaint filed is barred by limitation. It was averred that the plot in question is ready for possession. It was pleaded that the complainant defaulted in making payment towards price of the said plot. The complaint is bad for misjoinder/non-joinder of necessary parties. It was stated that neither there was any deficiency, in rendering service, on the part of the opposite parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

5.         In the rejoinder filed, the complainant reiterated all the averments, contained in the complaint, and repudiated those, contained in written version of the opposite parties.
6.         The contesting parties led evidence, by way of respective affidavit(s), in support of their cases and raised arguments, in terms of pleadings noted in earlier part of this order, which were heard, in detail.
7.         Before going into the merits of this case, we will like to decide the issue, with regard to relation of opposite parties no.1 and 2 with opposite party no.3, as far as the present complaint is concerned. It is significant to add here that this Commission has noticed in number of cases, earlier filed against the opposite parties that they (opposite parties no.1 to 3) are the sister concern, of which Sh.Gurpreet Singh Sidhu only, is the Managing Director. In number of cases, it has been observed that against purchase of residential unit(s)/plots, receipts against payments made by the concerned allottee(s) of unit(s)/plot(s), have either been issued by M/s Emerging India Real Assets (P) Ltd., M/s Emerging India Housing Corporation Pvt. Ltd., or M/s Emerging Valley Pvt. Ltd. This fact has also been admitted by Counsel for the opposite parties during arguments, in number of consumer cases, earlier filed against them, before this Commission. As such, under these circumstances, after going through the record/evidence of these cases, if this Commission comes to the conclusion that the Company is deficient in providing service and also adopted unfair trade practice with the complainant(s), liability will be imposed jointly and severally, for the reasons to be recorded in succeeding part of this order.
8.         The first question that falls for consideration, is, as to whether, the complainant is an investor, as such, he is not a consumer. To strengthen their stand, it was submitted by the opposite parties, that as the complainant has purchased another plot in the project of the opposite parties (subject matter of consumer complaint no.143 of 2018), as such, in this view of the matter, he would not fall within the definition of consumer. At the same time, he is also owning a house, address of which is mentioned in headnote of this complaint. We are not going to accept this objection. It may be stated here that there is nothing on the record that the complainant is a property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the plot, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. On the other hand, the complainant, by way of rejoinder, has clarified this Commission that the plot, in question, was purchased by him, for his residential purpose i.e. to settle alongwith his family, after retirement, near to Chandigarh. As far as the second plot (subject matter of consumer complaint no.143 of 2018) is concerned, it may be stated here that, in the first instance, the said plot was purchased by Mrs.Pushpa (now deceased), wife of the complainant, and it was only after her death, that the same stood transferred in his name. This fact is not disputed by Counsel for the opposite parties, when asked by this Commission, to confirm the same. Counsel for the complainant stated that two plots were purchased by the complainant and his wife, so that at one stage, they are able to amalgamate the same, for constructing a big house thereon. It may be stated here that a person cannot be said to have purchased a house for a commercial purpose only by proving that he/she has purchased more than one houses or plots.  Separate plots may be purchased by a person for the individual use of his family members.  A person may buy two or three houses, if the requirement of his family cannot be met in one house. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. Since the opposite parties have levelled allegations against the complainant, the onus lay upon them, to place on record, documentary evidence in that regard, which they failed to do so. Otherwise also, 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, 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 complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, therefore, being devoid of merit, is rejected. 

9.         The next question that falls for consideration, is, as to whether, the offer of possession so made by the opposite parties, in respect of the plot, in question, vide letters dated 06.11.2017 or 28.11.2017 Annexures C-8 and C-9 respectively, was a genuine one or a paper possession. It may be stated here that Counsel for the complainant has strongly contended that the offer so made was nothing but an eye wash, as there was no development and basic amenities at the project site and even as on today, the opposite parties are not in a position to deliver possession of the plot, in question, complete in all respects. To rebut the said contention, Counsel for the opposite parties did not put forth any convincing evidence, except saying that contention raised is not correct. It is pertinent to mention here that not even a single document has been placed on record by the opposite parties, to prove that development at the project site was complete, as far as back by November 2017 and plot was actually ready for offer of possession. 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. 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. Thus, in case, all the development activities, had been undertaken, at the project site, then it was for the opposite parties, 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. They were also required to place on record, copy of completion certificate, having been issued by the Competent Authorities, to prove that possession so offered vide letters dated 06.11.2017 or 28.11.2017 Annexures C-8 and C-9 respectively, was legal and valid possession, but they failed to do that also. As such, in the absence of such evidence, an adverse inference can very well be drawn against the opposite parties, that development at the site is not complete and possession so offered was nothing but a paper possession, issued by them, just with a view to evade their liability.
10.         Not only as above, unfair trade practice, on the part of the opposite parties, is writ large. Despite the fact that substantial amount of Rs.26,35,000/- out of Rs.31,00,000/- i.e. more than 90% has been received by them, from the complainant, yet,  Buyer’s Agreement was not got signed from him. This act of the opposite parties amounts to violation of the provisions of Section 6 of the PAPRA, which reads thus:-

“6.(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908) ;”

 

Buyer’s Agreement on accepting application for purchase of plot(s)/unit(s), should have been executed within a reasonable time say about two to three months. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-

“The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated  23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer’s Agreement was not put for signing in a reasonable time, say two  to three months. She continued to make payment and when Buyer’s Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected”.

 

                Under above circumstances, it is held that by not executing Buyer’s Agreement after accepting more than 90% of the sale consideration, or even till date, the opposite parties were guilty of providing deficient service to the complainant and also indulged into gross unfair trade practice.

11.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.26,35,000/- deposited by him. It has been held above that the possession so offered, vide letters dated 06.11.2017 or 28.11.2017 Annexures C-8 and C-9 respectively, and that too after an inordinate delay was nothing, but a paper possession. In number of cases filed against the opposite parties, in respect of the same project, it has been noticed as a matter of fact that the said project is farce and far away from completion of development, suffering inordinate delays for offering and delivering possession of plot(s)/unit(s). Non-delivery of possession of the plot/unit, by the stipulated date, is a material violation on the part of the opposite parties. It is settled law that when there is a material violation on the part of the builder, in not handing over possession of units/plots by the stipulated date, the purchaser is not bound to accept the offer, if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so held by the 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.”

 

Further, 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 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”.

 

                Under above circumstances, it is held that since there was a material violation on the part of the opposite parties, in not offering and handing over possession of the unit, in question, by the stipulated date, as such, in that event also, the complainant is entitled to get refund of amount paid by him, besides compensation for mental agony, physical harassment and financial loss, suffered by him.

12.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted in favour of the complainant. It has been proved on record that an amount of Rs.26,35,000/- was paid by the complainant, without getting anything, in lieu thereof, except paper possession, which is not sustainable in the eyes of law. 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 @18% p.a.,  as per Clause E 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 complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.26,35,000/- alongwith interest, from the respective dates of deposits till realization.  
13.         As far as the objection taken regarding non-impleading of Registered Office of the opposite parties in this consumer complaint is concerned, it may be stated here that there are ample documents on record, which reveal that the complainant was dealing directly with Corporate Office of the Company at Chandigarh. 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/misjoinder of necessary parties.

14.         Now coming to the objection taken with regard to limitation, in filing this complaint, it may be stated here that since it is an admitted fact that possession of the plot was offered to the complainant letters dated 06.11.2017 or 28.11.2017 Annexures C-8 and C-9 respectively, which infact was nothing but a paper possession, as such, period of limitation of two years, as prescribed under the Act, will start running from the said dates (06.11.2017 or 28.11.2017), and if it is taken so, the complaint having been filed on 05.04.2018, cannot be said to be time barred.

                Furthermore, since the Company is still utilizing the amount paid by the complainant(s), in all the complaints and has not refunded the same, in that event also, there is a continuing cause of action in their favour, in view of law laid down by the National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No. 340 of 2011, decided on 31 Aug 2016 and Saroj Kharbanda Versus Bigjo's Estates Limited, First Appeal No. 986 of 2016, decided on 01 Feb 2018, in which it was held that a builder cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount. Relevant part is reproduced hereunder: -

“On the other hand, the OP builder has also not been able to explain as to why they were keeping and enjoying the money deposited by the complainant all these years. They could have cancelled the allotment made in favour of the complainant and made attempts to return the money deposited in terms of the agreement/understanding between the parties, but they did not do so. Since, the part amount deposited by the complainant has been lying with the OP for all these years, it would not be justified to conclude that the complaint is barred by limitation. This is, therefore a case of continuing cause of action, because the OP builder had no right to forfeit the money deposited by the complainant.”

                In the present case, had the opposite parties cancelled the allotment of plot, on request having been made by the complainant, in the year 2014 and had they made attempt to return the money deposited in terms of the understanding between the parties and had the complainant refused to take the same, and on the other hand, had filed a consumer complaint, after a period of more than two years therefrom, the matter would have been different. Objection taken in this regard, therefore, stands rejected.

15.         An objection was also taken by the opposite parties that the complainant was defaulter in making payment towards price of the said plot. We do not agree with the objection taken. Not even a single document has been placed on record, in the shape of statement of account; demand letter(s) or any letter followed by reminders, to prove that at any stage, he being defaulter, was asked to make payment which fell due. As such, in the absence of any evidence, mere bald assertion to this affect cannot be taken into consideration, and is accordingly rejected.  
16.         Now coming to the plea taken by the opposite parties to the effect that the complainant ceased to be a consumer, once he, vide letter dated 11.08.2014 Annexure C-4, opted for the option of buyback offer of the unit, as it does not come under the purview of ‘service’. We do not agree with the plea raised. It may be stated here that we have gone through the contents of letter dated 11.08.2014, and found that it was on account of frustration of the complainant that he opted for buyback option, as the opposite parties failed to deliver him possession of the plot, in question,  despite the fact that he had paid more than 90% of the amount towards the same, in lumpsum and at the same time, Guaranteed Monthly Income (GRI) which was promised to be paid, till delivery of possession of the plot, was also stopped by the opposite parties. So, when a buyer has already paid substantial amount, referred to above, towards price of a plot and even after a period of about three years from the date of booking, possession thereof was not in sight and also at the same time, guaranteed rental income promised to be paid, is also stopped, he under compelling circumstances, will definitely want to quit from the deal, under the options available to him, out of terms and conditions of the contract.

                Now coming to the objection that offer of buyback is not a service, it may be stated here that any offer which is made  by a party concerned, on receiving sale consideration from another party, if not honored, in itself amounts to deficiency in provided service and adoption of unfair trade practice, which comes under the purview of the Act. In the present case, despite the fact that the complainant requested the opposite parties to extend him the offer of buyback option, which was offered to him, in writing, at the time of purchase of the said plot, but they failed to do so. Record shows that the complainant made many efforts, by writing letters to the opposite parties, so that his grievance is redressed out of Court, but when they failed to give any reply to his requests made, he was left with no alternative, then to approach this Commission, by way of filing this consumer complaint. As such, plea taken in this regard, stands rejected.

17.         An objection was also taken by the opposite parties to the effect that opportunity of filing evidence has not been given to the parties, in the present case. We do not agree with the objection raised. Perusal of record reveals that the complainant has filed his evidence by way of affidavit, which is at pages 13 to 22 of the paper book. Thereafter also, vide interim orders dated 09.04.2018, 15.05.2018, 27.06.2018, the complainant was given opportunity to file any additional evidence by way of affidavit but he was satisfied with the evidence already placed on record.  On the other hand, the opposite parties, were also given number of opportunities, vide interim orders dated 23.07.2018, 08.08.2018 and when ultimately on 04.09.2018, it was ordered that, in case, they failed to file the same, their defence will positively be closed, they (opposite parties) filed their evidence by way of affidavit which has been marked by them as Annexure R-A. Despite the fact that the complainant and opposite parties have led their evidence, by way of respective affidavit(s), even then during proceedings of this complaint, this Commission gave them further 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. Relevant contents of the said order reads thus:-

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

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

18.         In connected consumer complaint bearing no.59 of 2018, additional objections were raised by the opposite parties to the effect that verification of the affidavit/evidence made by the complainant is defective; and that forfeiture clause is to be made applicable in this case, in case this Commission orders refund of the amount paid, as the complainant was defaulter in making payment towards price of the flat purchased.

                First coming to the objection raised with regard to defective verification contained in the affidavit/evidence of the complaint, it may be stated here that we have gone through the same and find that the same has been made in accordance to the model specimen of affidavit in support of the complaint, provided in the Consumer Protection Act, 1986. Even otherwise, as stated above, evidence Act is not applicable to the Consumer Protection Act, 1986, which is a beneficial legislation, to provide speedy, inexpensive and hassle-free redressal to the grievance of the consumers and it is required of the Consumer Foras, to adjudicate the cases, on the principles of natural justice. Objection taken in this regard, as such, deserves rejection.

                Now coming to the objection that forfeiture clause is to be made applicable in this case, in case this Commission orders refund of the amount paid, as the complainant was defaulter in making payment towards price of the flat purchased. It may be stated here that it is settled law that the allottees of flats/plots could not be expected to go on making payments to the builder as per the payment plan, when they could discover that it is not in a position to hand over possession of the property in time, for want of construction and development at the project site.  It was so said by the National Commission in Rakesh Anand & Anr. Vs M/S. Royal Empires (Royal Minaar), First Appeal No. 1378 of 2016, decided on 09 Apr 2018. Relevant part of the said order reads thus:-

“………..It is clear from these facts that the complainants could not be expected to go on making payments to the OP builder as per the payment plan, when they could discover that the OP builder was not in a position to hand over the possession of the property in time.”

 

Similar view had also been 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. Even the Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, 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.

                In the present case also, it is positive stand of the complainant that when after making payment of Rs.12,98,000/-, she went to the project site, it was shocked to see that construction has not even started by the opposite parties. In this case, the opposite parties have failed to place on record even a single evidence, which could convince this Commission, that they will be able to complete construction and development activities, even in the near future. Even this much has not been clarified, as to at what stage of construction of the tower in which the flat, in question, was allotted to the complainant, has reached or whether it is started or not. At the time of arguments also, Counsel for the opposite parties has failed to give any convincing reply, in the matter, when asked for. Under these circumstances, alternate prayer pressed by Counsel for the complainant, at the time of arguments, with regard to refund of the amount paid alongwith interest, compensation etc. is accepted.

                The opposite parties, jointly and severally, are held liable for their aforesaid act and conduct of deficiency in rendering service, negligence and adoption of unfair trade practice.   

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

 

In Consumer Complaint bearing No.142 of 2018, the opposite parties, jointly and severally, are directed as under:-

 

1. To refund the amount Rs.26,35,000/- to the complainant, 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 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.143 of 2018, the opposite parties, jointly and severally, are directed as under:-

 

1. To refund the amount Rs.23,25,000/- to the complainant, 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 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.59 of 2018, the opposite parties, jointly and severally, are directed as under:-

 

1. To refund the amount Rs.12,98,000/- 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.11,000/- to the  complainant.

 

21.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii), in all the three complaints, shall be made, within a period of 02 (two) months respectively, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter, shall carry penal interest @15% p.a., instead of @12%, from the date of default, and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of the respective complaints,  till realization.
22.         However, it is made clear that, if the complainants, in any of the complaints, referred to above, 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).       
23.         It is further made clear that to meet the ends of justice, since we have ordered refund of the amount paid alongwith interest from respective dates of deposits, the opposite parties shall be entitled to deduct the actual amount of Guaranteed Rental Income (GRI) out of the awarded amount aforesaid, which already stood paid to the complainant(s), if it has been paid, in any of the cases aforesaid, as it was payable only in the event, the complainant(s) had sought possession of the unit(s)/plot(s), in respective complaints.
24.          Certified copies of this order be sent to the parties, free of charge and one copy be placed in connected files, referred to above.
25.         The files be consigned to Record Room, after completion.

Pronounced.

05.03.2019

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 

(PADMA PANDEY)

        MEMBER

 

 

Sd/-

 

(RAJESH K. ARYA)

MEMBER

 

 

 

 

Rg.