Chandigarh

StateCommission

CC/898/2016

Anuj Gupta - Complainant(s)

Versus

Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

Navneet Jindal, Adv.

01 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	898 of 2016
Date of Institution	:	09.12.2016
Date of Decision	:	01.05.2017

 

Mr.Anuj Gupta resident of House No.A-404, GH-5, Sanskriti Apartments, Sector 43, Gurgaon, Haryana.

……Complainant

V e r s u s

Omaxe Chandigarh Extension Developers Private Limited, through its Authorized Signatory/Managing Director

1. Corporate Office Address:-

10 LSC, Kalkaji, New Delhi-110019

 

2. Chandigarh Office Address:-

SCO No.139-140, First

Sector 8-C, Madhya Marg,

Chandigarh-160008

              .... Opposite Party

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

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:       Sh.Navneet Jindal, Advocate for the complainant.

      Sh.Sanjeev Sharma, Advocate for the opposite party.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The facts, in brief are that, the complainant purchased a plot measuring 301.38 square yards, in the project of the opposite party, namely ‘Omaxe Chandigarh Extension’, Mullanpur, Punjab, in resale from one Anuj Kumar son of Gian Chand. On completion of all the formalities, sale was endorsed in favour of the complainant by the opposite party. Allotment Letter/Agreement Annexure C-1, was executed between the complainant and opposite party on 20.07.2012. Total price of the plot was fixed at Rs.55,04,818.38 ps. The complainant opted for interest free installment linked payment plan. As per Clause 24 (a) of the said Allotment Letter/Agreement, the opposite party undertook to complete the development work within 18 months, with extended period of six months, from the date of signing of the said Allotment Letter/Agreement i.e. on or before 19.07.2014. It was further stipulated in the said Agreement that the said period was to be computed, after excluding Saturdays, Sundays etc. It was stated that as per demands raised by the opposite party, from time to time, the complainant paid total amount of Rs.52,33,598/-. It is case of the complainant that he received letter dated 06.06.2016 Annexure P-2, offering possession of the plot, on payment of an amount of Rs.5,20,867.73ps. It is grievance of the complainant that the amount claimed is on the higher side. The said amount was claimed without furnishing details of the same. It was further stated that the opposite party has no authority to claim payment of amount towards power backup equipment, electric substation cost, dual source energy meter & prepaid metering system cost, utility cost etc. The complainant had already paid the amount towards IDC and EDC, as such, it is duty of the opposite party, to complete the basic amenities and development in the project. It was further stated that to claim an amount of Rs.12,000/- towards utility cost, no reason has been given by the opposite party. The said amount is not payable, as per terms and conditions of the Agreement Annexure C-1. It was averred that the complainant is under an obligation to pay only 5% of the balance amount of basic sale price i.e. Rs.2,50,000/-. It was averred that the opposite party needs to pay interest on the amount deposited, for the period of delay, in delivery of possession of the plot. By making reference to the account statement annexed with the offer letter (at page 39 of the paper book), it is stated that the complainant had paid an amount of Rs.52,33,598/- towards price of the said plot. On the said amount, the opposite party needs to be directed to pay interest @12% p.a. till the date of taking over physical possession of the developed plot. It was stated that due to non-delivery of possession of the plot, the complainant failed to raise construction. The construction cost has escalated and for that also, the complainant needs to be compensated. By stating as above, following relief was claimed by the complainant, by way of filing this complaint:-

“It is therefore respectfully prayed that the Ops be directed provided all the necessary information as required by complainant as mentioned above and also in legal notice.

It is further prayed that the OP’s may be directed to issue fresh possession letter after withdrawing the previous possession letter with no extra cost except the amount of Rs.2,50,000/- (approx..) to be paid on possession.

It is further prayed that the OP’s may be directed to pay a lump sum amount of Rs.5,00,000/- for increase in cost of construction.

It is further prayed that the OP’s may be directed to pay interest of 12% on total amount receive by OPs for the period of 21 months as delayed compensation. 

It is further prayed that a sum of Rs.5,00,000/- be imposed on the ops to compensate the complainant for the mental agony and physical harassment undergone by the Complainant.

A sum of Rs.50,000 be paid to the Complainant as litigation cost.

Any other relief the Hon’ble District Forum deems fit may also be granted in favour of the Complainant.”

         

2.         This complaint was fixed for preliminary hearing on 14.12.2016, on which date, following order was passed by this Commission:-

 

“The complaint be registered.

Admitted. 

Let notice be issued to the Opposite Party.

Sh. Nihal Singh, Advocate is present in Court to represent the Opposite Party in some other case. On our asking, he accepts notice of this complaint on behalf of the Opposite Party. He undertakes to file his Vakalatnama on the next date of hearing. Copies of the complaint and other documents annexed therewith have been supplied to him. He seeks time to file reply and evidence on behalf of the Opposite Party. He may do so on or before the next date of hearing, with advance copy to the Counsel  opposite.

On request, adjourned to 16.01.2017.

The complainants may also file evidence by way of detailed affidavit(s) on or before the next date of hearing, with advance copy to the Counsel  opposite.          

It is on record that possession of the unit, in question, has already been offered to the complainant, on payment of Rs.5,31,640.73. The complainant is ready to take possession, however, he is disputing the amount claimed as referred to above.

Under above circumstances, we issue directions to the Opposite Party to hand over possession of the unit, in question, to the complainant within three weeks from today upon his depositing an amount of Rs.2 Lacs within 10 days from today.

Certified copy of this order be given dasti to Counsel for both the parties.”

 

3.         It was directed that on deposit of an amount of Rs.2 lacs, within ten days w.e.f. 14.12.2016, let possession of the plot be handed over to the complainant. It is not in dispute that the said amount was deposited and possession of the plot, in question, was also handed over to the complainant, during pendency of this complaint on 23.12.2016.
4.         On 24.03.2017, reply and evidence was filed by the opposite party, raising many preliminary objections like as per Clause 44 (c) of the Allotment Letter/Agreement, this Commission has no jurisdiction, to entertain and decide disputes between the parties, because as per above said provision, the matter needs to be referred to an arbitrator for adjudication. Territorial jurisdiction of this Commission was also challenged, by stating that no cause of action, whatsoever, has accrued within the territorial jurisdiction of this Commission. As per Clause 44 (c) of the Allotment Letter/Agreement, the Courts at Punjab and Delhi, shall have territorial Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. Pecuniary jurisdiction of this Commission was challenged by stating that the relief claimed falls below Rs.20 lacs. It was stated that as possession of the plot, had already been offered to the complainant on 20.01.2016, as such, cost thereof will not be added to other relief claimed, for determining pecuniary jurisdiction. It was averred in the written reply that the complainant did not fall within the definition of “consumer” as defined under Section 2 (1) (d) of the Act, as he has not purchased the plot for his residential purpose. He has his own house at Gurgaon, Haryana, wherein he is residing. At the time of arguments, it was argued that the complainant being a subsequent allottee, as he has purchased the unit, in question, from open market, is not a consumer.
5.         Factual matrix of the case was not controverted. Price of the plot mentioned in the complaint and payments made by the complainant are not disputed. It was admitted that the complainant purchased the plot, in question, in resale, in the manner, referred to above. It was stated that as per Clause 24 (a) of the Allotment Letter/Agreement, it was agreed that the opposite party shall only make best efforts to complete development works within a maximum period of 24 months from the date of signing thereof (allotment letter). It was further stated that the said period was to be computed excluding Saturdays, Sundays and Bank Holidays, and only thereafter, possession of the plot was to be delivered, as such, no definite period was fixed for the same. It was further stated that even otherwise, since the disputed plot falls under the category of immoveable property, as such, in that event also, time was not the essence of contract. It was further stated that possession of the plot had been offered to the complainant in January 2016, after completion of all the basic amenities and development at the site and that too, after obtaining partial completion certificate dated 10.07.2015 and not on 06.06.2016, as claimed by the complainant. It was further stated that the demands raised by the opposite parties, vide offer letter, were legal. It was further stated that the complainant has taken possession of the plot on 23.12.2016, during pendency of this complaint, after payment of due amounts, on order having been passed by this Commission. It was stated that since the complainant had not paid the amount so demanded, as such, interest on delayed payment was rightly demanded from him. It was further stated that since the complainant himself has admitted that he has affixed court fee of Rs.500/-, as such, the complaint is liable to be dismissed, as no proper court fee has been paid.
6.         On 01.03.2017, an application under Section 8 of the Arbitration and Conciliation Act, 1996, was also filed by the opposite party, stating that this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitration for adjudication. The said application was disposed of vide order dated 03.03.2017, with the direction that question qua arbitration will be considered, at the time of final arguments in the main case.     
7.         In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite party.
8.         The parties led evidence in support of their case.
9.         Counsel for the parties raised arguments, in tune of the facts narrated above.
10.         We have heard Counsel for the parties, and have gone through the evidence and record of the case, very carefully.
11.         Before making any reference to the merits of the case, we will like to decide the objection raised by the opposite party that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It may be stated here that according to Section 17 of the Act, the State Commission shall have jurisdiction to entertain the complaints, where the value of the goods or services and compensation, if any claimed, exceeds Rs.20 lacs but not exceeds Rs.1 crore. Similar view was taken by larger Bench of the Hon’ble National Commission, in a 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 portion of the said case 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 the instant case, the total value of the plot, in question i.e. Rs.55,04,818.38 ps., plus other relief/ compensation claimed by the complainant, if added, will definitely fall above Rs.20 lacs and below Rs.1 crore. As such, the plea of the opposite party that because possession of the plot had already been offered to the complainant, as such, price thereof will not be taken into consideration, as far the present complaint is concerned, for determining pecuniary jurisdiction of this Commission, and only the District Forum has pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.

12.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident that letter dated 06.06.2016 Annexure P-2; statement of accounts dated 06.06.2016 and 10.07.2016 respectively, were issued by Chandigarh office of the opposite party, as the same bear the first address thereon as SCO 139-140, Sector 8-C, Madhya Marg, Chandigarh. At the same time, it is also evident that all the documents placed on record by the opposite party were issued form Chandigarh Office of the Company, as the same bear round stamp of the said office. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

                In the written version, an objection was also taken by opposite party, that as per Clause 44 (c) of the Allotment Letter/Agreement, the Courts at Delhi and Punjab, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

                In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to him, to file the complaint. The submission of Counsel for the opposite party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

13.          The next question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that the mere bald objection of the opposite party that the complainant had not purchased the plot, for residential purpose, does not carry any weight and is liable to be rejected. It has been clearly mentioned by the complainant, in para no.1 of his complaint that the said plot was purchased by him for his residential purpose. On the other hand, nothing contrary to this has been proved by the opposite party, by placing on record, any document. There is nothing on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. Furthermore, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only as above, recently 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.”

 

                Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. 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 party, therefore, being devoid of merit, is rejected.  

14.         Another objection was raised by Counsel for the opposite party, that since the complainant is a subsequent allottee, and he has purchased the unit, in question, from the open market, he is not a consumer. It is not in dispute that the complainant has purchased the unit, in resale, in the manner, referred to above. Admittedly, the plot, in question, was transferred by the opposite party, in favour of the complainant. However, it is also an admitted fact that the Allotment Letter/Agreement containing detailed terms and conditions, in respect of the sale of unit, in question, was executed between the complainant and the opposite party only. It is well settled law that once the property is transferred/endorsed, in the name of the buyer(s) from the original owner, he/she/they (buyer(s), is/are vested with all the rights and interests, accrued in favour of his/her predecessor(s), as he/she/they stepped into her/his/their shoes. It was also so said by the National Consumer Commission, New Delhi in case Vatika Limited   Vs Mr. Rajneesh Aggarwal, Revision Petition No. 525 of 2013, decided on 22.07.2014, wherein the complainant was the fourth subsequent allottee. In that case, the National Commission, held as under:-  

“So far as the case of Raje Ram is concerned, the facts of the present case are totally different. In the present case, the respondent/complainant had purchased the apartment in question from the first transferee on 29.4.2006 when the construction had not been completed and   purchase/transfer of the apartment was duly approved by the petitioner company after charging Rs.65,840/- as transfer charges. In the circumstances, the petitioner company could not deny its role as a service provider to the respondent/complainant and has to be held liable for any deficiency in service with reference to the terms and conditions of the agreement which was made equally applicable to the complainant also consequent upon the approval of the assignment by the petitioner company……………...”

                The principle of law laid down in the aforesaid case, decided by the National Commission, is fully applicable to the present case. In view of above, the argument raised by Counsel for the opposite party, being devoid of merit, is rejected.

15.         Now coming to the prayer made by the complainant, to put him in possession of the developed plot. As stated above, the complainant has already taken possession of the plot, in question, on 23.12.2016, under order passed by this Commission,  during pendency of this complaint, on payment of Rs.2 lacs. At the time of arguments, it was stated by Counsel for the complainant that possession letter was not issued on 20.01.2016, as alleged by the opposite party. Rather, it was issued only in the month of June 2016, vide letter Annexure P-2. It was further stated that the amount of interest claimed towards delayed remittance by the complainant; utility cost; dual source energy meter and prepaid metering system cost; power backup equipment cost etc., claimed vide letter dated 06.06.2016, is not payable by the complainant. It was stated that for the delayed period in handing over possession of the plot, the complainant needs to be compensated. The prayer has been opposed by Counsel for the opposite party stating that despite issuance of repeated letters to take possession, on making balance payment and on signing the documents, the complainant has failed to come forward, as such, he is not entitled to any relief, as claimed.

                We have gone through the contents of documents placed on record very minutely. It is not in dispute, that as per terms and conditions of the Agreement, possession of the plot was to be delivered to the complainant on or before 19.07.2014. We are not convinced with the argument raised by Counsel for the complainant that offer of possession of the plot, in question, was not made on 20.01.2016, vide document Annexure OP/2. It is case of the complainant that he has not received the said letter. Be that as it may, even if it is taken that possession of the plot was offered on 20.01.2016, delay of about one year and six months, took place. For that period, the complainant needs to be compensated and accordingly, it is directed that on the deposited amount i.e. Rs.52,33,598/-, for the delayed period of one year and six months (18 months), let the opposite party pay interest @12% p.a. simple. The amount of interest payable by the opposite party to the complainant, for 18 months @12% p.a. (simple) comes to Rs.9,42,047.64ps. (Rs.52,33,598/- x 12% x18 months/100x18x12)

16.         Further, at the time of arguments, Counsel for the opposite party has failed to justify the claim of amount of Rs.12,000/- towards utility cost. Such payment is not stipulated in the terms and conditions of the Agreement dated 20.07.2012 and for claiming that amount, no proper justification has been given in the reply filed by the opposite party. Demand to this extent, stands quashed. Further, at the time of arguments, it was very fairly stated by Counsel for the opposite party that claim towards interest on delayed remittance, to the tune of Rs.38,974/- will be waived off, and the complainant need not to pay the same. So far as amount payable towards dual source energy meter i.e. Rs.26,550/- is concerned, it is stated by Counsel for the complainant that let the complainant pay the said amount, when he will raise construction on the said plot. Let the said amount be paid on start of construction by the complainant, in the plot under his possession. Other amounts claimed towards club charges, interest free maintenance security, power backup equipment cost, infrastructure cost/cess; electric substation cost; is perfectly justified and we allow the same. In this manner, the total balance amount now payable (Rs.26,550/- will be paid separately by the complainant at the time of start of construction) comes to Rs.4,43,343.70ps. and not Rs.5,20,867.73ps., as claimed in the letter dated 06.06.2016. The complainant has already paid an amount of Rs.2 lacs to the opposite party, during pendency of this complaint, under order of this Commission. In this manner, amount payable by him comes to Rs.2,43,343.70ps. only i.e. Rs.4,43,343.70ps. minus (-) Rs.2 lacs. The opposite party may adjust this amount of Rs.2,43,343.70ps. against the compensation to be paid by it, for the delayed period, in favour of the complainant, i.e. out of Rs.9,42,047.64ps. as referred to, in earlier part of this order and rest of the amount be paid to him
17.         An objection was also raised by Counsel for the opposite party that it was mentioned in the Allotment Letter/Agreement that the Company shall make its best efforts to deliver possession of the plot within a period of 18 months, with further grace period of six months, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 24 (a) of the Allotment Letter/ Agreement that possession of the plot will be delivered by the opposite party, within a period of 18 months, with extended period of 6 months, by making best efforts, to complete the development work, subject to force majeure circumstances or reason beyond the control of the opposite party. It is not the case of the opposite party that it encountered any force majeure circumstances, as a result whereof, it was legally entitled for extension of time for delivering possession of the plots to the allottees, including the complainant.

                It was also argued that, as per terms and conditions of the said Allotment Letter/Agreement, when computing the above said period, Sundays, Saturdays, Bank Holidays, etc. are to be ignored.

                We feel that the contention raised is liable to be rejected. As stated above, in Clause 24(a) of the Agreement, it is stated that possession will be delivered within 18 months, from the date of allotment letter, with six months’ extension. It is further stated that when computing the said period all Saturdays, Sundays and Bank Holidays will be excluded. A similar issue came up for consideration before this Commission qua another project of the opposite party, in the case of Dr.Divya Dahiya Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another, Consumer Complaint No.57 of 2016, decided on 15.07.2016, wherein, it was observed as under:-

“The first question, which falls for consideration, is, as to whether there was delay in offering possession of the plot, in question, and if so, to what extent. The allotment letter for independent floor in Row-Housing Project “Silver Birch” in the project of the Opposite Parties (Annexure C-4) was issued to the complainant on 30.08.2011. As per Clause 31(a) of the allotment letter, the Opposite Parties were to complete the development of the unit within 24 months or within an extended period of six months from the date of start of construction, subject to force majeure conditions. Since allotment letter is dated 30.08.2011, by computing 24 months plus 6 months’ period, the Opposite Parties were bound to deliver possession of the plot, in question, by 01.03.2014. The Opposite Parties have stated that period was to be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body. Apparently, for seeking six months extension beyond 24 months or beyond six months extended period, the Opposite Parties owe an explanation, if the delay was on account of force majure conditions but nothing by way of cogent evidence to this effect has been placed on record. Thus, when no explanation for extension of six months period has been furnished, the Opposite Parties at the most could be allowed one out of the two benefits i.e. either six months extension beyond 24 months or period on account of Sundays/Holidays etc. This Commission in Consumer Complaint No.153 of 2015 titled ‘Mr. Madan Lal Taneja and another Vs. M/s Omaxe Chandigarh Extension Developers P. Ltd.’ decided on 03.11.2015, facts of which were almost identical, held that Opposite Parties were to hand over possession within 30 months from the date of start of construction. Thus, the possession of the unit, in question, was to be delivered by 01.03.2014.”

 

                Similar view was reiterated by this Commission, in a case titled as Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, decided on 16.08.2016 and thereafter also, in number of cases. It was specifically held that when there is no explanation of getting extension of 6 months’ period to deliver possession beyond the stipulated date, the benefit of exclusion of Saturdays, Sundays, Bank Holidays etc. cannot be given. Thus, under these circumstances, since as per Clause 24 (a) of the Allotment Letter/Agreement, the opposite party was bound to deliver possession of the developed plot, within a maximum period of 24 months from the date of execution of the same i.e. on or before 19.07.2014, as such, time was unequivocally made the essence of contract.

                At the same time, the opposite party also cannot evade its liability, merely by saying that since it was mentioned in the Allotment Letter/Agreement, that it shall put its best efforts for delivery of possession of the plot, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Allotment Letter/Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

               

                In view of above, the plea of the opposite party in this regard also stands rejected.

18.         Another objection taken by the opposite party that since the unit, in question, falls under the category of immovable property, as such, in that event also, time is not to be considered as essence of the contract, is also bereft of merit, in view of ratio of judgment titled as Saradamani Kandappan vs S. Rajalakshmi & Ors., Civil Appeal Nos. 7254-7256  of 2002 &                                      and  Contempt Petition (C) No. 28-29 of 2009, decided on 4^th  July, 2011, wherein the Hon`ble Supreme Court held as under:-

“A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by this court in K.S. Vidyanadam and Others vs. Vairavan - (1997) 3 SCC 1 (by Jeevan Reddy J. who incidentally was a member of the Constitution Bench in Chand Rani). This Court observed:

"It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect.

In the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973. .........We cannot be oblivious to the reality and the reality is constant and continuous rise in the values of urban properties - fuelled by large scale migration of people from rural areas to urban centres and by inflation.

Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so."

(emphasis supplied) Therefore there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices. We do not propose to undertake that exercise in this case, nor referring the matter to larger bench as we have held on facts in this case that time is the essence of the contract, even with reference to the principles in Chand Rani and other cases. Be that as it may.”

 

19.         Counsel for the opposite party also argued that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication. We are not going to agree with the argument raised. This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

25.        The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

26.      To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

27.                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

28.      Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

29.       In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

 “8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

30.   Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

31.        Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

32.        We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

33.        The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

34.        Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

35.   In  view of the above, the plea taken by the opposite party, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.”

                In view of the above, the plea taken by the opposite party in this regard, being devoid of merit is rejected.

20.         As far as the objection regarding court fees is concerned, it may be stated here that we have carefully gone through the record, and found that correct fee to the tune of Rs.4,000/- vide demand draft dated 08.12.2016 has been paid by the complainant. However, if there was any typographical error in writing Rs.500/- instead of Rs.4,000/- in the complaint, the opposite party cannot gain any advantage out of it. Objection taken in this regard is rejected.  
21.         No other point, was urged, by Counsel for the parties.
22.         For the reasons recorded above, the complaint is partly accepted with costs. The opposite party is directed as under:-

1. To pay an amount of Rs.9,42,047.64ps., towards compensation for the period of delay, calculated @12% p.a., from 19.07.2014 to 20.01.2016.
2. To pay compensation, in the sum of Rs.1 lac, 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.50,000/- to the  complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months, from the date of receipt of a certified copy of this order, failing which, the said amount shall be paid alongwith penal interest @15% p.a. (simple) for the period from 19.07.2014 to 20.01.2016 instead of 12% as calculated above, and interest @12% p.a. (simple), on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing this complaint, till realization.

23.         However, it is made clear that the complainant shall also be bound to pay the cost of dual source energy meter and prepaid metering system, referred to above, on the date of start of construction of the plot. If he fails to start the construction within two years, from the date of receipt of a certified copy of this order, he will be liable to make the said payment, at the end of expiry of the said period of 02 years.
24.         Further, the complainant is also directed to pay an amount of Rs.2,43,343.70ps. to the opposite party, within a period of 3 (three) months, from the date of receipt of certified copy of this order, in case, the opposite party did not adjust the same, from the amount, to be paid by it, as ordered above.
25.         Certified Copies of this order be sent to the parties, free of charge.
26.         The file be consigned to Record Room, after completion.

Pronounced.

01.05.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 Rg