Chandigarh

StateCommission

CC/20/2019

Mr. Ankit Jain - Complainant(s)

Versus

M/s Manohar Infrastructure and Constructions Private Limited - Opp.Party(s)

Mukesh Bambhu Adv.

16 Dec 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	20 of 2019
Date of Institution	:	23.01.2019
Date of Decision	:	16.12.2019

 

Mr.Ankit Jain son of Shri Narinder Jain, resident of House no.1759, Sector 4, Panchkula, Haryana, presently residing at 25, Colenbrander Road, Milton Park, Harare, Zimbabwe, through general power of attorney Shri Narinder Jain son of Shri Ved Parkash Jain, resident of House no.1759, Sector 4, Panchkula, Haryana.

……Complainant

V e r s u s

1. M/s Manohar Infrastructure & Construction Private Limited, Regd. Office Manohar Campus, SCO 139-141, Level-1, Sector-17C, Chandigarh, through Sh.Tarninder Singh, Managing Director.
2. M/s Manohar Infrastructure & Construction Private Limited, Regd. Office Manohar Campus, SCO 139-141, Level-1, Sector-17C, Chandigarh, through Sh. Narinderbir Singh, Director.

…..Opposite parties

Complaint under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS. PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

Argued by:           Sh.Subhash Chand, Advocate for the complainant.

       Sh. I.P. Singh, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The above captioned complaint has been instituted seeking directions to the opposite parties, to refund the amount of Rs.29,73,750/- paid by the complainant towards purchase of plot measuring 250 square yards in the project named “Palm Garden”,  Mullanpur, Punjab. It is the case of the complainant that, despite making payment of substantial amount, referred to above, the opposite parties failed to allot plot; execute buyers agreement and deliver possession thereof, though it was booked as far as back in December 2011 and rather the opposite parties were interested only in collecting money. It also came to the notice of the complainant that the project in question has been launched and plots therein were sold to the prospective buyers without obtaining necessary permissions/sanctions from the competent Authorities. When despite making request vide letter dated 04.07.2014 (Annexure C-5), neither agreement was executed nor development at the project site took place, request was made by the complainant to cancel allotment of plot and refund the amount paid, to which the opposite parties did not accede.

                   By stating that the aforesaid act and conduct of the opposite parties amount to deficiency in providing service and adoption of unfair trade practice, the complainant has filed the present case.

2.           His claim has been contested by the opposite parties, on numerous grounds, inter alia, that the complainant being NRI did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act; that this Commission did not vest with territorial jurisdiction; that the complaint filed is beyond limitation; that the complainant was requested number of times to make remaining payment and sign buyer’s agreement but he failed to do so; that complicated questions of facts and law are involved in this complaint, as such, the same cannot be entertained by this Commission, proceedings before which are summary in nature; that only Civil Court has jurisdiction to entertain and decide this complaint; that the project of the opposite parties has been registered under the on 15.09.2017; that as per Section 35 of the PAPR Act, jurisdiction of Civil Court is barred to entertain and decide any question relating to matters arising under PAPR Act; and that the power of attorney filed is defective.
3.           On merits, it has been admitted by the opposite parties that they have received the amounts as asserted by the complainant for the sale of plot in question. It has been stated that the project was approved on 22.03.2013 and the formal agreement was signed with the Government of Punjab on 14.06.2013; that thereafter some more land was added to the project, for which completion period was given upto 13.06.2018, vide supplementary agreement dated 16.06.2016 executed with the Government; that later on exemption from the applicability of provisions of the PAPR Act stood granted by the Government on 25.01.2017 and as such all the irregularities committed by them stood compounded, as exemption granted will have retrospective effect and no prejudice will be caused to the complainant; that once the State Government has not held that the opposite parties had violated the provisions of PAPR Act, as such, this Commission cannot go into the said question; that on request made by the opposite parties, the Competent Authority extended completion period of the project upto 31.07.2019; and that as on date the opposite parties have obtained all permissions in respect of the project in question. By placing reliance upon the judgment of the Hon’ble Supreme Court of India, in DLF Homes Panchkula (P) Ltd. vs Sushila Devi, 2019 (Civil Appeal Nos. 2285-2330 of 2019 (@ SLP(C) NOS.928-930, 932-938, 940-967 and 969-976 of 2019), decided on 26 February 2019, it has been stated that claim of the complainant seeking interest @21% p.a. on the deposited amount is totally unjustified. Rather, it should be @9% p.a.
4.           However, ironically, it has been claimed in the reply that the opposite parties are trying to complete the project, as early as possible, as the development work is going on in full swing and work with regard to provision of basic amenities such as water, electricity etc. are near completion. It is alleged in the reply that the project was delayed on account of red-tapism in the offices of different departments of the Govt. and also due to the business competition and political rivalries and this is why, the competent authorities have delayed in granting approvals/sanctions. While applying the theory of force majeure circumstances (which means irresistible circumstances beyond ones control such like act of God), it has been alleged that delay in delivery of possession of plots occurred also on account of shortage of building material and ban on mining by the government. Remaining averments of the complaint have been denied.
5.           This Commission has afforded adequate opportunities to both the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, they have adduced evidence by way of affidavit and also produced numerous documents.
6.           We have heard both the parties and have carefully gone through record of the case, very carefully.
7.           In this case, following points have emerged for consideration: -

1.       Whether this Commission has territorial jurisdiction to entertain this complaint?
2.       Whether the complainant falls under the definition of consumer?
3.       Whether this Commission is competent to entertain this complaint?
4.       Whether there is any violation on the part of the opposite parties in the matter?
5.       Whether the complaint filed is time barred?
6.       Whether there was any deficiency in rendering service, negligence and unfair trade practice on the part of the opposite parties?
7.       Whether the complainant is entitled to get refund of the amount paid alongwith interest and if yes, at what rate?

 

8.           First coming to the objection regarding territorial jurisdiction, it may be stated here that Sub-section 2 of Section 17 of the Act envisages that person aggrieved have remedy to file a complaint before a State Commission within the limits of whose jurisdiction:-

“(a) the opposite party or each 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; or

 

(b) 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; or

 

(c) the cause of action, wholly or in part, arises”.

 

In the present case, perusal of almost all the documents placed on record, pertaining to transaction carried out between the parties, reveal that the same have been issued and received from/by Chandigarh Office of the opposite parties i.e. Manohar Infrastructure and Constructions Pvt. Ltd., SCO No.139-141, Sector 17-C, Chandigarh, meaning thereby that the opposite parties were actually and voluntarily residing and carrying on their business, at the said Chandigarh Office for gain. As such, Objection taken in this regard is rejected. 

9.           Now coming to the objection raised that the complainant being NRI did not fall within the definition of ‘consumer’, it may be stated here that the mere fact that the complainant is an NRI or his family members are living in Panchkula or somewhere else in India, is no ground to snub him out of the purview of ‘consumer’. No law debars NRI and any other person sitting abroad, with roots in India, to purchase a residential property in India for his/her personal use. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. Each NRI wants a house in India. The complainant is an independent person and can purchase any house in India,  in his own name. Similar view was expressed by the Hon’ble National Commission in Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016. 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. In Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided by the Hon’ble National Commission, it was held that the buyer(s) of the residential units, would be termed as consumers, unless it is proved that he or she had booked the same for commercial purpose. There is nothing on record to prove that the complainant is a speculator. As such, he falls within the definition of ‘consumer’.
10.           There is no dispute that the complainant  had booked  a plot in the project of the opposite parties on 25.12.2011, on making payment of Rs.13,72,500/-, which was equal to 30% of the total sale consideration. Thereafter also, on demands made by the opposite parties, the complainant paid further amount of Rs.9,15,000/- on 04.06.2013 and Rs.6,86,250/- on 04.07.2014. In this manner, total amount of Rs.29,73,750/- stood paid by the complainant to the opposite parties till July 2014, yet, when neither plot no. was allotted; nor agreement was executed between the parties nor development work was completed at the project site, the complainant wrote letter dated 04.07.2014 (Annexure C-5) to the opposite parties to intimate him with regard to the status and progress at the project site; and  date of offer of possession of the plot  but the same was not even responded by the opposite parties.
11.           It may be stated here that despite receiving more than 60% of the total sale consideration i.e. Rs.29,73,750/- out of Rs.45,75,000/-, the opposite parties failed to execute buyer’s agreement in respect of the plot agreed to be purchased by the complainant. There is no dispute that even by the date, when this complaint has been filed and arguments were heard therein, neither agreement was got executed between the parties in respect of plot in question nor possession thereof has been offered to him.  
12.           Both the parties are leveling allegations against each other. Counsel for the complainant contended that the opposite parties failed to provide agreement for signatures of the complainant, whereas on the other hand, Counsel for the opposite parties contended with vehemence that the complainant was requested number of times for allotment of plot and execution of the agreement but he failed to do so. It is very significant to mention here that not even an iota of evidence has been placed on record by the opposite parties, to prove that they ever requested the complainant to come for allotment of plot and execution of agreement. On the other hand, it is found from letter dated 28.04.2014 (Annexure C-4), that a demand of Rs.6,86,250/- was made by the opposite parties, which too was paid by the complainant but even then neither plot was allotted nor agreement was executed between the parties. As stated above, once the opposite parties, in the first instance, had already received substantial amount of Rs.13,72,500/-, which was equal to 30% of the total sale consideration, it was required of them to allot plot; execute agreement under law; complete the development work; obtain completion certificate from the competent authorities; and then deliver possession of the plot. However, instead of doing that, the opposite parties were interested only in raising demands from the complainant. As such, the demand raised is not only unfair but illegal, which contravenes Section 6 (1) of the PAPR Act, which lays a duty on the opposite parties to execute the agreement for sale as per law, after obtaining the maximum sale consideration of 25%. It is apposite here to reproduce the said provision: -

 “6. Contents of agreement of sale:- (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 form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act No. 16 of 1906) ;

Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots.

(2) xxxxxxxxxxxxxxxx……………...

(3) xxxxxxxxxxxxxxxxx……………….”

Thus, the opposite parties were duty bound under law to execute the agreement and to get it registered under the Registration Act 1908, after obtaining 25% of the sale consideration, but in this case, the said provision has been violated. The opposite parties also cannot take shelter under the exemption certificate from the provisions of PAPR Act, which was issued in their favour only on 25.01.2017 i.e. much after booking of the plot. It has no where been proved that the said exemption will have retrospective effect but in our considered opinion, it will have prospective effect only. The opposite parties were deficient in providing service and adopted unfair trade practice on this count.

13.           Furthermore, the opposite parties in their written statement have very candidly admitted that at the time of booking of the plot and collecting money from the complainant, they were not having requisite licences, approvals and permissions from the competent authorities, yet, it was asserted by them all the irregularities stood compounded when notification exempting the provisions of PAPR Act was issued in their favour on 25.01.2017. We do not agree with the plea taken. Infact, the money has been collected with animus of cheating and fraud which cannot be cured by obtaining the exemption from the provisions of PAPR Act, at the subsequent stage. Furthermore, it is settled law that a builder cannot take advantage of the situation by simply saying that the statutory approvals had not been obtained from the Government Authorities or that the same had been delayed.  The builder is duty bound to ensure that before accepting the amount of booking, necessary permission/sanctions have been granted for launching the project and selling the units therein. It was so said by the Hon’ble National Commission in Omaxe Limited and anr. Vs. Dr. Ambuj Chaudhary, First Appeal No. 300 of 2012, decided on 13.02.2017.
14.           Surprisingly, the Government of Punjab, Department of Housing and Urban Development (Housing II Branch) i.e. the competent authority was well aware of the fact that the project has been started without permissions and huge money has been collected and usurped by the opposite parties from innocent buyers, yet, it did not hear the aggrieved consumers before granting exemption to the project on 25.01.2017 from the provisions of PAPR Act.  As such, the said act of the competent authority is against the principles of natural justice; fair play and not binding on the complainant and other prospective buyers. 
15.           Now coming to delay in offering possession of the plot to the complainant, it may be stated here that the opposite parties in their written reply in para nos.20 and 21 (preliminary objections), have very candidly admitted that development work at the project site is going on in full swing; and that basic amenities such as roads, sewerage, electricity etc. are near completion. However, except some photographs, perusal of which too reveal that still a lot of work is pending to be done at the project site, no other cogent and convincing evidence has been placed on record, to prove that the development is at the advance stage as alleged in the reply and that basic amenities such as roads, electricity, sewerage, water supply etc. are near completion. Still, no exact period/date has been given, by which possession of the plot could be delivered to the complainant. Burden to prove that the project has been completed and the area/site, in question, is fully developed or is about to complete, is on the builder/opposite parties. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. At the same time, perusal of contents of the written reply reveal that self-contradictory pleas have been taken  with regard to delay in offer of possession of the plot in question to the complainant. In some paragraphs it has been stated that delay took place in offering possession because there was delay on the part of the Govt. Departments to sanction approvals/permissions; due to shortage of construction material etc. etc. whereas, at the same time, it has been stated that since more land was added to the project, as such, permission was sought from the competent Authorities for extension of time for completing the project in question.

                   As such, perusal of contents of reply filed by the opposite parties clearly go to show that they were not serious in completing the project and are now taking bald excuses for causing delay, just with a view to defeat the genuine claim of the complainant. Under these circumstances, it is held that the opposite parties by neither allotting plot no.; nor executing agreement within the stipulated period or thereafter even; nor completing the development work even by the date when this complaint was filed and by not delivering possession of the plot, despite the fact that the same was booked as far as back in December 2011- indulged into unfair trade practice and were also negligent and deficient in providing service, for which the complainant deserves to be suitably compensated.

                   At the same time, it is also held that plea taken by the opposite parties to the effect that delay took place in offering possession because there was delay on the part of the Govt. Departments to sanction approvals/permissions; and shortage of construction material etc. does not carry out any weight, in the absence of any documentary evidence in that regard. Not even a single letter has been placed on record by the opposite parties showing that they ever reported the Govt. Authorities concerned that there is a delay on their part in granting sanctions/approvals in respect of the project in question or that any such letter, by which they have given notice to the said Authorities that in case the needful is not done in a prescribed time, they shall move to the appropriate platform of law, in the matter.

                   Now coming to the plea regarding shortage of construction material, it may be stated here that nothing has been placed on record by the opposite parties to prove that they were unable to procure the said construction material, in adequate quantity. There is no evidence of the opposite parties having invited tenders for supply of construction material and there being no response to such tenders. A similar plea with regard to shortage of building material as a cause for delay in delivery of possession of the units was taken by a builder before the Hon`ble National Consumer in Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  decided on 14 Aug 2015,  which was rejected and the complaint was allowed in favour of the complainant. In the present case also, the opposite parties failed to convince this Commission, that they actually encountered force majeure (which means irresistible circumstances beyond ones control such like act of God etc.) circumstances, as a result whereof, delay in handing over possession of the plot occurred. As such, the stand taken by the opposite parties, in this regard, is rejected.

16.           Now coming to the objection taken by the opposite parties with regard to jurisdiction of this Commission and maintainability of this complaint. It may be stated here that it is a simple case of non-execution of agreement under the provisions of Section 6 of the PAPR Act within the reasonable time; and non-delivery of possession of  plot to the complainant  by the opposite parties thereby causing financial loss, mental agony and harassment to the complainant. The acts, omissions and commissions on the part of the opposite parties amount to deficiency in providing service as well as negligence and adoption of unfair trade practice. In Narne Construction P. Ltd., etc. etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766).                     Furthermore, in view of Section 3 of the Act 1986, it is open to the consumers to approach the Consumer Foras for redressal of their grievance notwithstanding that he/she can get relief under any other Act/Court. In view of above findings, we can safely say that the provisions of the RERA and PAPR Act will not debar the jurisdiction of this Commission in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the builder/developer. Under these circumstances, it is held that no complicated question of facts and law are involved in this complaint. The complaint involves the consumer dispute and the same is maintainable before this Commission. As such, Objection taken in this regard stands rejected.
17.           At the time of arguments, it was vehemently contended by Counsel for the opposite parties that since the project in question has been got registered under the RERA in the year 2017 and also because some cases are pending before the Hon’ble Punjab and Haryana High Court on this issue, as such, jurisdiction of this Commission is barred to entertain this complaint arising out of the plot in question located in the said project and the complaint be relegated to RERA. It may be stated here that it is an admitted fact that under the RERA, the opposite parties got themselves registered their project, only on 15.09.2017. At the time of said registration, no notice was issued to the complainant and other proposed buyers under the opposite parties and at the time of transaction between the parties in 2011, there was no registration under RERA and now after a period of more than eight years, the claim of complainant cannot be ignored on this score.
18.           In all, in the present case, the grievance has been raised by the complainant qua wrongful act/mistake done, leading to deficiency in providing service, negligence and adoption of unfair trade practice, in selling the project by the opposite parties without sanctions/approvals, before coming into existence of RERA. Reading of the provisions of Section 88 of RERA makes it very clear that the same are in addition and not in derogation of the provisions of any other law for the time being in force. Section 79 of the RERA further makes it very clear that jurisdiction of only the Civil Court to entertain a suit or proceedings qua action taken as per the provisions of the said Act is barred. The Consumer Foras under the Act, 1986 despite having some trappings of a Civil Court are not the Civil Courts. As such, the jurisdiction of the Consumer Foras is not barred to entertain the complaints filed by consumers, alleging deficiency in providing service, negligence and adoption of unfair trade practice against the builder like the opposite parties. The view taken by this Commission is supported by the observations made by the Hon’ble National Commission in Mohit Sharma & Anr. Vs. M/S. Ramprastha Promoters and Developers Pvt. Ltd. & Anr., Consumer Case No. 2384 of 2017, decided on 01 May 2019, wherein it was held that RERA does not bar the jurisdiction of Consumer Fora. Similar view was reiterated by the Hon’ble National Commission in Sandeep Mittal Vs. Ireo Grace Realtech Pvt. Ltd., Consumer Case No. 1916 of 2016 decided on 30 Jul 2019.  
19.           Thus, it transpires that the opposite parties were not competent to sell plots or flats and to collect money from the complainant and other prospective buyers, in 2011, as far as the present project is concerned. Since not even a single document has been placed on record by the opposite parties to counter the allegations leveled by the complainant, it can very well be said that the project in question was launched and units therein were sold to the innocent buyers, in complete violation of the mandatory requirements as per Law, just with a view to grab money from them. The aforesaid act of the opposite parties amounted to grave deficiency in providing service, negligence and adoption of unfair trade practice on their part. Under these circumstances, we are of the considered opinion that we cannot make the complainant to wait for an indefinite period, in the matter. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date or if there is no agreement within a reasonable period say two to three years from the date of booking, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019. In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that if we order refund of the amount paid alongwith suitable interest that will meet the ends of justice. 
20.           The question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver possession of residential units/plots, by the stipulated date or within a reasonable period where no agreement has been executed, fell for determination before the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon`ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment.
21.           Recently also, under similar circumstances, the Hon’ble Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019 while ordering refund of the amount paid, awarded interest @12% p.a.
22.           In view of principle of law laid down by the Hon`ble Supreme Court of India and aforesaid observations made by the Hon’ble National Commission, if interest @12% p.a. is awarded to the complainant, from the respective dates of deposits that will meet the ends of justice. At the same time, the opposite parties are also held liable to compensate the complainant for deficiency in providing service, negligence and adoption of unfair trade practice and also causing him mental agony and harassment.
23.           As far as objection taken to the effect that the complaint filed is beyond limitation, it may be stated here that since it is an admitted fact that possession of the plot in question has not been delivered even by the date when this complaint had been filed before this Commission, as such, objection taken with regard to limitation, is not sustainable in the eyes of law, especially 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),  wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer. As such, objection taken in this regard is rejected.
24.           Furthermore, in no way, the opposite parties can wriggle out of their deficiencies by saying that delay took place on account of the reason that the complainant defaulted in making payment, as not even a single document has been placed on record by the opposite parties, whereby, further amount (over and above the amount of Rs.29,73,750/- already received), had been demanded from the complainant. Therefore, such a bald plea has no significant value in the eyes of law and is accordingly rejected. Even otherwise, the Hon’ble 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 installments to it. Plea taken by the opposite parties in this regard is rejected.   
25.           Now coming to the objection taken to the effect that the power of attorney filed on behalf of the complainant alongwith the complaint is defective, it may be stated here that the same is rendered infructuous in view of fresh power of attorney dated 20.09.2019 (Annexure C-9) executed by the complainant in the name of Sh.Narinder Jain, having been placed on record by way of moving miscellaneous application bearing no.1028 of 2019. The said application for placing on record fresh power of attorney aforesaid, was allowed by this Commission vide order dated 05.12.2019, in view of principle of law laid down by the Hon’ble Supreme Court of India, in M/s Haryana State Coop. Supply and Marketing Federation Ltd. Vs. M/s Jayam Textiles and anr., Criminal Appeal No.833 of 2014, decided on 07.04.2014, wherein it was held that procedural defects and irregularities, which are curable, should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use and as such, an opportunity should be given to the party concerned, to cure the defective document, if any, in accordance with law, instead of dismissing the petition/complaint. Furthermore, the Consumer Protection Act, 1986, is a beneficial legislation, to provide speedy, inexpensive and hassle-free redressal to the grievance of the consumers. Unnecessary technicalities deter an individual consumer from approaching the consumer fora, thereby frustrating the objective of the Act. 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. Similar view was taken 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.
26.           For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.29,73,750/- to the complainant, alongwith interest @12% p.a., from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.29,73,750/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/- to the complainant within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @12% p.a. from the date of passing of this order, till realization.

27.           However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said plot, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.
28.           Certified Copies of this order be sent to the parties, free of charge.
29.           The file be consigned to Record Room, after completion.

Pronounced.

16.12.2019

Sd/-

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

 MEMBER

 Rg.