PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT
The facts, in brief, are that the complainant vide Agreement to Sell dated 26.03.2012, had purchased a plot, measuring 200 square yards, in Sector 113, at Landran Chowk, Mohali, from the opposite parties, for the price of Rs.35,60,000/- plus External Development Charges. It is her case that no date was fixed to finalize the bargain, because the opposite parties were to obtain "No Due" and "No Objection" certificates, from the Competent Authorities, to sell/transfer of land. By 11.06.2012, the entire sale consideration i.e.
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Rs.36 lacs, stood paid by the complainant, to the opposite parties, towards price of the unit. It is so reflected in Agreement to Sell Annexure C-1 and receipts Annexures C-2 and C-3. Thereafter, it appears that Residential Plot Buyer's Agreement was entered into between the parties, on 16.08.2013. No fixed date to handover possession of the developed unit was given by the opposite parties. It was only said that on making the development at the project, intimation will be sent and sale deed shall be executed, and got registered, in favour of the complainant, within 45 days, from the date of such intimation. Clause 10 of Plot Buyer's Agreement, reads thus:-
"That the Sale Deed shall be executed and got registered in favour of the Allottee(s) within 45 (Forty Five Days) from the date of intimation, after the Residential Plot has been fully constructed and completed as per layout plan in the said Project and after receipt of Total Sale Price including but not limited to PLC (if any), additional EDC, late payment charges, interest and other charges and compliances of all other terms and condition of this Agreement by the Allottee(s)."
2. After making entire payment towards price of the unit, the complainant continued to wait, however, failed to get any positive response qua delivery of possession, from the opposite parties. It is stated that the opposite parties got licence, to develop the colony, only in the year 2014 and they had no licence to develop it, when the unit had been sold to the complainant. It is reflected in document Annexure C-7 issued by the Greater Mohali Area Development Authority (GMADA) that the said licence was granted on 07.07.2014. It is further stated that realizing their default, the opposite parties, to compensate her, started paying an amount of Rs.14,000/-, from the month of August 2014 upto February 2015 and, thereafter, an amount of Rs.21,000/- per month was paid, upto July 2015. Three times, the cheques paid by the opposite parties bounced and despite making requests, nothing was paid to the complainant. On 15.01.2016, letter Annexure C-8 was received by the complainant from the opposite parties stating that new Directors have joined and they shall be responsible to handover possession of the unit to the complainant. Thereafter, the complainant approached the opposite parties, many a times, however, no heed was paid to her requests. Compelled under the circumstances, she filed this complaint, on 04.02.2016, in which notice of motion was issued on 08.02.2016.
3. When despite issuance of notice, none put in appearance, on behalf of opposite party no.3, it was ordered to be proceeded against exparte on 18.03.2016, by invoking the provisions of Regulation 10
(2) of the Consumer Protection Regulations 2005.
4. In reply, short affidavit was filed by opposite parties no.1 and 2, wherein it was stated that in the Plot Buyer's Agreement dated 16.08.2013, no commitment was made to handover possession of the unit, within the specified period. New Management has taken over the project and as per letter dated 15.01.2016, it was intimated to the complainant that possession will be delivered in the near future. To say so, reference was also made to an advertisement dated 07.04.2016, wherein also it was so said. It was categorically stated that possession of the unit, will be delivered to the complainant prior to May 2017, to ward off any legal complication. The remaining averments, were denied, being wrong.
5. The complainant and opposite parties no.1 and 2 led evidence, in support of their cases, by way of filing their respective affidavits.
6. We have heard Counsel for the complainant, opposite parties no.1 and 2, and, have gone through the evidence and record of the case, carefully.
7. At the time of arguments, both the parties, reiterated the facts, mentioned above.
8. Sh.A.D.S. Jattana, Counsel for opposite parties no.1 and 2, has primarily stated that possession will be delivered to the complainant, within six months and further that there was no commitment, to deliver possession within the specified period, as such, no deficiency in providing service can be attributed to opposite parties no.1 and 2. It is asserted that the unit, in question, was purchased for future gain, as such, the complainant would not fall within definition of a consumer, as defined under Section 2 (1) (d) of 1986 Act. It is also stated that consumer complaint is not maintainable, and only a Civil Court, could adjudicate the dispute, in question. Pecuniary and territorial jurisdiction of this Commission was also challenged.
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9. After giving our thoughtful consideration, to the contentions, advanced by Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the complaint is liable to be accepted, for the reasons to be recorded hereinafter. It is not in dispute that the unit, in question, was sold in favour of the complainant, vide Agreement to Sell dated 26.03.2012, for an amount of Rs.35,60,000/- plus (+) EDC, to be paid within three months i.e. upto 11.06.2012. Admittedly, upto 11.06.2012, the entire amount i.e. Rs.36 lacs, towards price of the unit stood paid by the complainant to the opposite parties. Plot Buyer's Agreement was executed between the parties on 16.08.2013, without giving any commitment, as to within how much time, colony will be developed and possession of the plot will be delivered to the complainant. The complainant had already paid the entire price of the unit, under duress, having fear of cancellation of the unit and forfeiture of the amount paid by her, she was made to sign the Buyer's Agreement. Further, by not executing Buyer's Agreement, within a reasonable time, say one or two months, but on the other hand, executing the same, after more than a year of selling the unit, and that too after receiving the entire sale consideration, the opposite parties have not only indulged into unfair trade practice but also contravened the provisions of Section 6 (1) of the Punjab Apartment and Property Regulation Act, 1995, which envisages that it is mandatory that before execution of the Buyer's Agreement, more than 25% amount towards plots/units cannot be received by a builder.
10. Further by not giving any commitment, as to when possession of the unit will be delivered to the complainant also amounted to deficiency in providing service and adoption of unfair trade practice. The entire price of the plot was paid by the complainant upto 11.06.2012. Four years have lapsed. Nothing is in sight. At the time of arguments, Counsel for opposite parties no.1 and 2 submitted that possession of the unit will be delivered to the complainant, within next six months. The said act of the opposite parties needs deprecation.
It is specifically stated by the complainant by making reference to Agreement to Sell dated 26.03.2012 and Plot Buyer's Agreement was executed on 16.08.2013, that when the unit was sold, licence to develop colony was not yet in the hands of the opposite parties. In the affidavit filed, there is no denial to the same and the above fact is apparent from the document, Annexure C-7 dated 07.07.2014. The said document depicts that the licence to develop a colony was given to the opposite parties on the said date (07.07.2014). By selling the plots without having any licence/permission to do so, a clear violation of the provisions of the PAPRA Act, has been made by the opposite parties.
Not only this, it is settled principle of law that a builder is required to take necessary permissions/ licence to develop a colony and thereafter can sold the units. It was also so said by the National Commission, in a case titled as Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7 (NC). In that case, it was observed and held as under:-
"The main questions which require consideration in the appeal are—
(i) Can a builder give alluring advertisement promising delivery of possession of the constructed building/flat to the purchaser/ consumer within the stipulated time, and, subsequently, on his failure, turn around and contend that as governmental permissions, such as, approval of zoning plan, layout plan and schematic building plan, were not given, the delay in construction should not be the ground for grant of compensation to the consumer?
And,
(ii) Secondly, whether the consumer should suffer by paying escalation cost due to such delay?
2. In our view, it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as zoning plan, layout plan and schematic building plan. It is the duty of the builder to obtain the requisite permissions or sanctions such as sanction for construction, etc., in the first instance, and,
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thereafter, recover the consideration money from the purchaser of the flat/buildings.
3. Secondly, in such a case, if there is any express promise that the premises would be delivered within the stipulated time, and, if not done so, escalation cost is required to be borne by the builder."
The principle of law, laid down in the aforesaid case, is fully applicable to the present case. In this view of the matter, it is held that the opposite parties adopted unfair trade practice, on this count.
11. The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, a consumer complaint could 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 her. In the instant case, it is evident, that Agreement to Sell dated 26.03.2012 as also Residential Plot Buyer's Agreement dated 16.08.2013 were executed between the parties, at Chandigarh. Besides this, it is evident, that almost all the documents including receipts, letters, etc., placed on record, has been issued by Chandigarh Office of the opposite parties i.e. Geetu Constructions Pvt. Ltd., at Chandigarh. Not only this, it has been agreed to, between the parties, as per Clause 65 of the Plot Buyer's Agreement dated 16.08.2013 (at page 35 of the file) that the Courts/ Tribunals/Forums at Chandigarh shall have the exclusive jurisdiction, to entertain and decide any dispute arising qua the plot, in question. 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 Counsel for opposite parties no.1 and 2, at the time of arguments, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
12. Another objection raised by Counsel for opposite parties no.1 and 2, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainant has sought refund of the amount deposited, towards price of the same, alongwith interest @24% p.a., from the respective dates of deposits, till realization, alongwith compensation and litigation expenses, aggregate value whereof [excluding the interest claimed] came to be around Rs.40,57,000/- and, as such, fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.
13. To defeat claim of the complainant, another objection was raised by Counsel for opposite parties no.1 and 2, that the complainant is a speculator, as she has purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, she would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that there is nothing, on the record to show, that the complainant is the property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by Counsel for opposite parties no.1 and 2, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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, Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant, thus, falls within the definition of 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by Counsel for opposite parties no.1 and 2, therefore, being devoid of merit, is rejected.
14. Another objection was raised by Counsel for opposite parties no.1 and 2 that the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainant hired the services of the opposite parties, for purchasing the unit, in the manner,
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referred to above. Section 2 (1) (o) of the Act, defines service as under:-
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"
From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. 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). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by her, as she falls within the definition of consumer. In this view of the matter, the objection taken by Counsel for opposite parties no.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.
15. The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.36 lacs (as is evident from the record) deposited by her. It is an admitted fact that the opposite parties are unable to deliver possession of the unit, in question, on account of pending development works and want of basic amenities. Still, no firm date of delivery of possession of the unit, could be given to the complainant. At the time of argument also, it has been frankly admitted by Counsel for opposite parties no.1 and 2 that possession of the unit will be delivered within next six months. This statement of Counsel for opposite parties no.1 and 2, is not based on any documentary evidence, because even this much has not been proved, as to how much development has been made at the project. The complainant cannot be made to wait for an indefinite period, for delivery of possession of the unit. The opposite parties, therefore, had no right, to retain the hard- earned money of the complainant, deposited towards price of the unit, in question. The complainant is, thus, entitled to get refund of the amount deposited by her. In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her, as also escalation in prices.
16. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is not in dispute that the entire sale consideration, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the opposite parties, for their own benefit. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs.36 lacs, (as per receipts on record) alongwith interest @15% p.a., from the respective dates of deposits.
17. No other point, was urged, by Counsel for the parties concerned.
18. For the reasons recorded above, the complaint is partly accepted, with costs. The opposite parties are jointly and severally directed as under:-
i. To refund the amount Rs.36 lacs, to the complainant, alongwith interest @15% p.a., from the respective dates of deposits onwards.
ii. To pay compensation, in the sum of Rs.3 lacs lacs, for causing mental agony and physical harassment,
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to the complainant, as also escalation in prices.
iii. To pay cost of litigation, to the tune of Rs.33,000/- (as prayed) to the complainant.
iv. The payment of awarded amounts mentioned at sr.nos.(i) to (iii) shall be made within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a, instead of @15%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion Pronounced.
01.06.2016
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[JUSTICE JASBIR SINGH (RETD.)]
PRESIDENT
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(DEV RAJ)
MEMBER
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(PADMA PANDEY)
MEMBER
Rg.
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