Consumer Complaint No.427 of 2014 (alongwith other 23 connected cases), decided on as under:-08.06.2015. It was observed
It was also contended by the learned counsel for the opposite party that since the agreements between the parties contains arbitration clause, arbitration and not a complaint before this Commission is the appropriate remedy. I, however, find no merit in this contention. As provided in Section 3 of the Consumer Protection Act, the provision of this Act are in addition to the other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching a consumer forum in a case of deficiency in the services rendered to him by the service provider or adoption of unfair trade practices by him. This issue came up for consideration of the Honble Supreme Court in National Seeds andCorporation Vs. M. Madhusudhan Reddy & Anr. (2012)2 SCC 506 after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C.P. Act it was held that the plain language of Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. The Honble Supreme Court has also held that the complaint filed by a consumer before the consumer fora would be maintainable despite their being an arbitration clause in the agreement to refer the dispute to the Arbitrator. In view of the above referred authoritative pronouncement of the Honble Supreme Court which -15- was later followed by a Three Members Bench of this Commission in DLF Ltd. Vs. Mridul Estate Pvt. Ltd., R.P. No.412 of 2011 decided on 13-05-2013, the aforesaid contention advanced by the learned counsel for the opposite party is liable to be rejected.
Reading of ratio of the judgments referred to above, make it clear that in case of M/s S.B.P. and Co.'s case (supra), the issue before the Supreme Court of India was altogether different. The provisions of 1986 act were not under consideration viz. a viz. the provisions . As such, the ratio of judgments referred to above, makes it very clear that theof 1996 Act judgments in Sudarshan Vyapar Pvt. Ltd. and another's and Raj Kumar Singal's cases were given by wrongly interpreting the ratio of .(supra), M/s S.B.P. and Co.'s case (supra) In view of the above, it is held that the submission of Counsel for Opposite Parties No.1 and 2, that the complaint filed under Section 17 of the Act, was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Buyers Agreement, being devoid of merit, stands rejected. Another objection raised by Counsel for Opposite Parties No.1 and 2, that time was not essence of the contract is also devoid of merit, in view of Clause 8 of the Buyers Agreement, according to which, possession of the plot, in question, was to be delivered within a maximum period of 18 months, from the date of execution of the same, failing which they were liable to pay compensation/penalty @ Rs.50/- per square yard per month, for the period of delay. The time was, thus, unequivocally made the essence of contract. The plea of Counsel for Opposite Parties No.1 and 2 in this regard also stands rejected. Another frivolous objection was taken by Counsel for Opposite Parties No.1 and 2, by stating that the plot, in question, is situated at Mohali, as such, only the State Consumer Disputes Redressal Commission, Punjab, has territorial Jurisdiction to entertain and decide the complaint. 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/her. In the instant case, the Agreement, in respect of the plot, in question, was executed, at Chandigarh, as is evident from page 53 of the file. Not only this, even the payment acknowledgment receipts at pages 106-111 reveal that the same were issued by Opposite Party No.2 at Chandigarh, as the same bore the address Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by Counsel for Opposite Parties No.1 and 2, also stands rejected. So far as the objection taken by Counsel for Opposite Parties No.1 and 2 regarding pecuniary Jurisdiction of this Commission is concerned, it may be stated here, that the complainant has sought refund of an amount of Rs.45 lacs paid by him, alongwith interest @18% P.A., from the respective dates of deposits; compensation to the tune of Rs.5 lacs, for mental agony, physical harassment and financial loss; and cost of litigation, to the tune of Rs.50,000/-, the aggregate value whereof, if clubbed together, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection, taken by Counsel for Opposite Parties No.1 and 2, in this regard also, deserves rejection. Counsel for the complainant has vehemently contended that even when an offer of possession of plot was made, the Competent Authority had not issued a Completion Certificate for the project in question. To the contrary, it is stated by Counsel for Opposite Parties No.1 and 2 that on account of exemption granted to them by the State Government, -16- under the Punjab Apartment and
Property Regulation Act 1995, it was not necessary for them to get Completion Certificate, in respect of the project, in question. In view of findings given in the preceding paragraphs of this order, we are not giving any opinion on this issue, in this case and it is kept open. No other point, was urged, by Counsel for the parties. For the reasons recorded above, the complaint is partly accepted, with costs, qua Opposite Parties No.1 and 2. As such, Opposite Parties No.1 and 2 are jointly and severally directed, as under:- To refund an amount Rs.45 lacs to the complainant. To pay compound interest quarterly @ 18%, to the complainant, from respective dates, on the amount aforesaid (total Rs.45 lacs), when deposited with them. (Above rate of interest is less than the rate of interest charged by Opposite Parties No.1 and 2 for delayed payment i.e. 24% compounded quarterly, as per Clause 3 of the Buyers Agreement) To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices of the real estate. To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant. To pay the entire ordered amount, in Clauses (i), (iii) and (iv), including compound interest quarterly @ 18% as mentioned in Clause (ii) above, within a period of , from the date of receipt of a certified copy of this order, failingthree months which they shall be liable to pay to the complainant, compound interest quarterly @ 24%, qua the entire amount assessed, from the date of default till realization, i.e. on Clauses (i), (iii) and (iv). The complaint qua Proforma Opposite Party No.3 is dismissed with no order as to costs, as no deficiency, in rendering service, or adoption of unfair trade practice, has been proved by the complainant, on its part. However, it is made clear that Housing Development Finance Corporation Ltd./Proforma Opposite Party No.3, from which the loan was taken by the complainant, for payment of installments, towards the said plot, shall have first charge on the amount, referred to in Clause (i) above, to the extent of unpaid loan amount, by him (complainant). Certified copies of this order be sent to the parties, free of charge. The file be consigned to Record Room, after completion. Pronounced.
13.10.2015 Sd/- [JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/- [DEV RAJ] -17- MEMBER Sd/- [PADMA PANDEY] MEMBER -18-