STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 309 of 2016 Date of Institution : 30.06.2016 Date of Decision : 22.11.2016 Ankur Gupta son of Sh.Naresh Gupta, C-89, Old DLF Colony, Sector 14, Gurgaon (Haryana). Complainant V e r s u s Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Sr. General Manager, S.C.O. 139-140, Sector 8-C, Madhya Marg, Chandigarh. Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Managing Director, 10-Local Shopping Complex, Kalkaji, New Delhi-110019. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER. MRS. PADMA PANDEY, MEMBER : Sh.Parveen Gupta, Advocate for the complainant.Argued by Sh.Munish Gupta, Advocate for the opposite parties. PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT The opposite parties advertised their project, known as Omaxe Chandigarh Extension at Mullanpur, Punjab, through various publications in the newspapers and pamphlets. Attracted by salient features of the said project, the complainant moved an application dated 14.03.2011, Annexure C-1, to purchase an independent floor, measuring 1725 square feet, in the said project. He paid an amount of Rs.8 lacs, through cheque, on the said date, towards booking amount. In response to letter dated 01.08.2011, Annexure C-2, sent by the opposite parties, the complainant further deposited an amount of Rs.9,18,951.85Ps., towards price of the said unit, which also includes Rs.23,068.98Ps., paid towards service tax. His name was included in the draw of lots conducted on 23.12.2011. On the said date, the complainant was intimated that an independent floor measuring area 1725 square feet, on a plot measuring 300 square yards (in short the unit), has been allotted to him. Total price of the unit was fixed at Rs.57,45,998.50Ps. It is further case of the complainant that at the time of booking, a commitment was made that possession of the constructed unit will be delivered within a period of two years, from the said date i.e. 23.12.2011. The opposite parties delayed execution of the Allotment/Buyers Agreement (in short the Agreement), which was got signed only on 26.03.2013. The said Agreement was drafted in a standard format and it was one sided, favoring only the opposite parties. As the complainant had already paid huge amount towards price of the said unit, as such, under compulsion, he was made to sign the said Agreement. In terms of Clause 23 (b) of the Agreement possession of the unit was to be handed over to him, within a period of 24 months, from the date of issuance of same (Agreement) i.e. from 26.03.2013, with extended period of six months, subject to force majeure circumstances. Above action was objected to, by the complainant. Therebefore, vide letter dated 15.02.2013, Annexure C-5, he was intimated that notwithstanding Clause 23 (b) of the Agreement, the period of 24 months, for offering possession would be counted from the date of allotment i.e. 23.12.2011 Annexure C-5. The said period to deliver possession came to an end on 23.12.2013. For payment, the complainant was given construction linked plan. As and when, amount was demanded, it was paid by him and by 02.03.2015, he had paid an amount of Rs.46,34,264.01Ps. and after filing this complaint, an amount of Rs.2,90,000/- was also deposited with the opposite parties. In this manner, total amount of Rs.49,24,264.01Ps., already stood paid by the complainant. It is his case, that as and when request was made by the complainant to deliver possession of the constructed unit, he was not given any attention by the opposite parties. He sent legal notice dated 11.05.2016, Annexure C-7, with a request that possession of the unit be delivered to him, as promised, and further for the delayed period, he be paid interest @18% p.a. on the amount deposited. He also sought compensation for causing him mental agony and physical harassment. The said legal notice was not replied by the opposite parties. Faced with the situation, the complainant filed this consumer complaint before this Commission, with a prayer to direct the opposite parties to deliver possession of the constructed unit, in question; pay compensation, by way of interest, on the deposited amount, for the period of delay in delivery of possession of the unit; compensation for mental agony and physical harassment as also litigation expenses. Upon notice, joint reply was filed by the opposite parties. Thereafter, an application was filed stating that in terms of Clause 41 of the 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. The said application was disposed of, vide order dated 15.09.2016, holding that the question qua arbitration will be considered at the time of final arguments in this case. In the written reply filed, an attempt has been made by the opposite parties, to defeat prayer made by the complainant, on frivolous grounds, like this Commission has got no territorial and pecuniary jurisdiction; complainant being an investor would not fall within the definition of a consumer as defined under Section 2(1)(d) of the Act, as he had purchased the unit, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits and that the complaint filed is beyond limitation. Factual matrix of the case was not controverted. Purchase of unit by the complainant and payments made is not disputed. It was stated that Buyers Agreement was sent to the complainant for signing on 18.09.2012, however, he returned it only on 25.03.2013 and the same was executed thereafter. Vide letter dated 15.02.2013, it was intimated to the complainant that possession of the unit will be delivered within a period of 24 months from the date of allotment i.e. 23.12.2011. Not that letter, but terms and conditions of the Agreement dated 26.03.2013, which was signed thereafter, will be binding between the parties and in terms of Clause 23 (b) of the Allotment Letter/Agreement, beyond the period of 24 months, the opposite parties can get further six months to deliver possession of the unit. It was further stated that as per the terms and conditions of the said Allotment Letter/Agreement, when computing the above said period, Sundays, Saturdays, Bank Holidays, etc. are to be ignored. Receipt of legal notice was denied. It was stated that the complainant was intimated that possession of the unit will be offered and delivered by the next year i.e. in 2017. It was further stated that since the complainant was defaulter in making payment, as such, he is not entitled for any compensation for the period of delay in delivering possession of the unit, in question. Prayer was made to dismiss the complaint. In the rejoinder filed, the complainant reiterated all the averments, contained in the complaint and controverted those, contained in written version of the opposite parties. It was specifically stated that the unit was booked for residential purpose and not for sale. Communication through email, to show that the opposite parties agreed to pay delayed compensation for delay in handing over possession, has been placed on record. Besides as above, letter dated 05.04.2015, written by the complainant to the opposite parties, has also been placed on record, controverting plea reiterating that possession was to be delivered within 24 months from 23.12.2011 and not from the date of signing of the Agreement. The parties led evidence in support of their case. We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully. In the first instance, we will deal with an argument, raised by Counsel for the complainant that by offering Agreement for signing after many months of the allotment and receiving huge amount, the opposite parties have indulged into unfair trade practice. It is on record that the complainant purchased the built-up unit by moving an application on 14.03.2011. He paid an amount of Rs.8 lacs, towards booking amount. Thereafter, in terms of letter dated 01.08.2011 Annexure C-2 sent by the opposite parties, an amount of Rs.9,18,951.85Ps., towards price of the said unit, which also includes Rs.23,068.98Ps., towards service tax, was paid by him. After draw of lots, flat was allotted to him on 23.12.2011. It is positive case of the complainant that Agreement was offered for signing on 18.09.2012; he signed and gave it to the opposite parties, on the same day. However, thereafter, to gain time, it was wrongly shown to have been executed on 26.03.2013. To the contrary it is case of the opposite parties that Agreement was signed on the date mentioned above. To support above said contention, no evidence whatsoever, has been placed on record by the opposite parties. As such, it can safely be said that Agreement was got signed belatedly on 26.03.2013 i.e. after a period of about 15 months, from the date of allotment, in the month of March 2011. The said act would amount to unfair trade practice on the part of the opposite parties. It was also so said by this Commission in Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, .decided on 16.08.2016 In the present case also, Agreement was delay by about 15 months, as such, by doing so, as stated above, the opposite parties have indulged into unfair trade practice, for which, the complainant is entitled to reasonable compensation, as per prayer made at the time of arguments. It is specific case of the complainant that when booking was made in March 2011, a commitment was made that possession of the unit will be delivered within 2 years from the said date i.e. upto 22.12.2013. To strengthen that argument, Counsel for the complainant has also made reference to letter dated 15.02.2013 Annexure C-5, reiterating that possession will be delivered within a period of 24 months, from the date of allotment i.e. 23.12.2011. As has been held, by this Commission, in earlier part of this order, the Agreement was signed on 26.03.2013. Any commitment made prior thereto, including through letter dated 15.02.2013 Annexure C-5, will not be binding upon the parties. It is not the case of the complainant that he has not signed the agreement, in question, as has been observed in earlier part of this order, for delay caused in getting Agreement executed, reasonable compensation can be granted to the complainant. It was specifically stated by Counsel for the opposite parties that as per Clause 23 (b) of the Agreement, beyond the period of 24 months, the opposite parties can get further six months to deliver possession of the unit. It was further stated that as per the 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. In Clause 23(b) of the Agreement, it is stated that possession will be delivered within 24 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 parties, in the case of Dr.Divya Dahiya Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another, , wherein, it was observed as under:-Consumer Complaint No.57 of 2016, decided on 15.07.2016
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 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 309 of 2016 Date of Institution : 30.06.2016 Date of Decision : 22.11.2016 Ankur Gupta son of Sh.Naresh Gupta, C-89, Old DLF Colony, Sector 14, Gurgaon (Haryana). Complainant V e r s u s Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Sr. General Manager, S.C.O. 139-140, Sector 8-C, Madhya Marg, Chandigarh. Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Managing Director, 10-Local Shopping Complex, Kalkaji, New Delhi-110019. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER. MRS. PADMA PANDEY, MEMBER : Sh.Parveen Gupta, Advocate for the complainant.Argued by Sh.Munish Gupta, Advocate for the opposite parties. PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT The opposite parties advertised their project, known as Omaxe Chandigarh Extension at Mullanpur, Punjab, through various publications in the newspapers and pamphlets. Attracted by salient features of the said project, the complainant moved an application dated 14.03.2011, Annexure C-1, to purchase an independent floor, measuring 1725 square feet, in the said project. He paid an amount of Rs.8 lacs, through cheque, on the said date, towards booking amount. In response to letter dated 01.08.2011, Annexure C-2, sent by the opposite parties, the complainant further deposited an amount of Rs.9,18,951.85Ps., towards price of the said unit, which also includes Rs.23,068.98Ps., paid towards service tax. His name was included in the draw of lots conducted on 23.12.2011. On the said date, the complainant was intimated that an independent floor measuring area 1725 square feet, on a plot measuring 300 square yards (in short the unit), has been allotted to him. Total price of the unit was fixed at Rs.57,45,998.50Ps. It is further case of the complainant that at the time of booking, a commitment was made that possession of the constructed unit will be delivered within a period of two years, from the said date i.e. 23.12.2011. The opposite parties delayed execution of the Allotment/Buyers Agreement (in short the Agreement), which was got signed only on 26.03.2013. The said Agreement was drafted in a standard format and it was one sided, favoring only the opposite parties. As the complainant had already paid huge amount towards price of the said unit, as such, under compulsion, he was made to sign the said Agreement. In terms of Clause 23 (b) of the Agreement possession of the unit was to be handed over to him, within a period of 24 months, from the date of issuance of same (Agreement) i.e. from 26.03.2013, with extended period of six months, subject to force majeure circumstances. Above action was objected to, by the complainant. Therebefore, vide letter dated 15.02.2013, Annexure C-5, he was intimated that notwithstanding Clause 23 (b) of the Agreement, the period of 24 months, for offering possession would be counted from the date of allotment i.e. 23.12.2011 Annexure C-5. The said period to deliver possession came to an end on 23.12.2013. For payment, the complainant was given construction linked plan. As and when, amount was demanded, it was paid by him and by 02.03.2015, he had paid an amount of Rs.46,34,264.01Ps. and after filing this complaint, an amount of Rs.2,90,000/- was also deposited with the opposite parties. In this manner, total amount of Rs.49,24,264.01Ps., already stood paid by the complainant. It is his case, that as and when request was made by the complainant to deliver possession of the constructed unit, he was not given any attention by the opposite parties. He sent legal notice dated 11.05.2016, Annexure C-7, with a request that possession of the unit be delivered to him, as promised, and further for the delayed period, he be paid interest @18% p.a. on the amount deposited. He also sought compensation for causing him mental agony and physical harassment. The said legal notice was not replied by the opposite parties. Faced with the situation, the complainant filed this consumer complaint before this Commission, with a prayer to direct the opposite parties to deliver possession of the constructed unit, in question; pay compensation, by way of interest, on the deposited amount, for the period of delay in delivery of possession of the unit; compensation for mental agony and physical harassment as also litigation expenses. Upon notice, joint reply was filed by the opposite parties. Thereafter, an application was filed stating that in terms of Clause 41 of the 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. The said application was disposed of, vide order dated 15.09.2016, holding that the question qua arbitration will be considered at the time of final arguments in this case. In the written reply filed, an attempt has been made by the opposite parties, to defeat prayer made by the complainant, on frivolous grounds, like this Commission has got no territorial and pecuniary jurisdiction; complainant being an investor would not fall within the definition of a consumer as defined under Section 2(1)(d) of the Act, as he had purchased the unit, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits and that the complaint filed is beyond limitation. Factual matrix of the case was not controverted. Purchase of unit by the complainant and payments made is not disputed. It was stated that Buyers Agreement was sent to the complainant for signing on 18.09.2012, however, he returned it only on 25.03.2013 and the same was executed thereafter. Vide letter dated 15.02.2013, it was intimated to the complainant that possession of the unit will be delivered within a period of 24 months from the date of allotment i.e. 23.12.2011. Not that letter, but terms and conditions of the Agreement dated 26.03.2013, which was signed thereafter, will be binding between the parties and in terms of Clause 23 (b) of the Allotment Letter/Agreement, beyond the period of 24 months, the opposite parties can get further six months to deliver possession of the unit. It was further stated that as per the terms and conditions of the said Allotment Letter/Agreement, when computing the above said period, Sundays, Saturdays, Bank Holidays, etc. are to be ignored. Receipt of legal notice was denied. It was stated that the complainant was intimated that possession of the unit will be offered and delivered by the next year i.e. in 2017. It was further stated that since the complainant was defaulter in making payment, as such, he is not entitled for any compensation for the period of delay in delivering possession of the unit, in question. Prayer was made to dismiss the complaint. In the rejoinder filed, the complainant reiterated all the averments, contained in the complaint and controverted those, contained in written version of the opposite parties. It was specifically stated that the unit was booked for residential purpose and not for sale. Communication through email, to show that the opposite parties agreed to pay delayed compensation for delay in handing over possession, has been placed on record. Besides as above, letter dated 05.04.2015, written by the complainant to the opposite parties, has also been placed on record, controverting plea reiterating that possession was to be delivered within 24 months from 23.12.2011 and not from the date of signing of the Agreement. The parties led evidence in support of their case. We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully. In the first instance, we will deal with an argument, raised by Counsel for the complainant that by offering Agreement for signing after many months of the allotment and receiving huge amount, the opposite parties have indulged into unfair trade practice. It is on record that the complainant purchased the built-up unit by moving an application on 14.03.2011. He paid an amount of Rs.8 lacs, towards booking amount. Thereafter, in terms of letter dated 01.08.2011 Annexure C-2 sent by the opposite parties, an amount of Rs.9,18,951.85Ps., towards price of the said unit, which also includes Rs.23,068.98Ps., towards service tax, was paid by him. After draw of lots, flat was allotted to him on 23.12.2011. It is positive case of the complainant that Agreement was offered for signing on 18.09.2012; he signed and gave it to the opposite parties, on the same day. However, thereafter, to gain time, it was wrongly shown to have been executed on 26.03.2013. To the contrary it is case of the opposite parties that Agreement was signed on the date mentioned above. To support above said contention, no evidence whatsoever, has been placed on record by the opposite parties. As such, it can safely be said that Agreement was got signed belatedly on 26.03.2013 i.e. after a period of about 15 months, from the date of allotment, in the month of March 2011. The said act would amount to unfair trade practice on the part of the opposite parties. It was also so said by this Commission in Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, .decided on 16.08.2016 In the present case also, Agreement was delay by about 15 months, as such, by doing so, as stated above, the opposite parties have indulged into unfair trade practice, for which, the complainant is entitled to reasonable compensation, as per prayer made at the time of arguments. It is specific case of the complainant that when booking was made in March 2011, a commitment was made that possession of the unit will be delivered within 2 years from the said date i.e. upto 22.12.2013. To strengthen that argument, Counsel for the complainant has also made reference to letter dated 15.02.2013 Annexure C-5, reiterating that possession will be delivered within a period of 24 months, from the date of allotment i.e. 23.12.2011. As has been held, by this Commission, in earlier part of this order, the Agreement was signed on 26.03.2013. Any commitment made prior thereto, including through letter dated 15.02.2013 Annexure C-5, will not be binding upon the parties. It is not the case of the complainant that he has not signed the agreement, in question, as has been observed in earlier part of this order, for delay caused in getting Agreement executed, reasonable compensation can be granted to the complainant. It was specifically stated by Counsel for the opposite parties that as per Clause 23 (b) of the Agreement, beyond the period of 24 months, the opposite parties can get further six months to deliver possession of the unit. It was further stated that as per the 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. In Clause 23(b) of the Agreement, it is stated that possession will be delivered within 24 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 parties, in the case of Dr.Divya Dahiya Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another, , wherein, it was observed as under:-Consumer Complaint No.57 of 2016, decided on 15.07.2016
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. , facts of which were almost identical, held that Oppositedecided on 03.11.2015 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' (supra) . 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. Out of the two benefits, only one can be made available to the opposite parties. In the present case, Agreement was executed on 26.03.2013. As per admitted terms and conditions, possession of the unit was to be delivered by 25.09.2015. However, it has not been so done. There is no commitment on record that possession is ready even as on today. Future date to deliver possession has not been committed. In a very draconian manner, in the Agreement, in Clause 23(b), it has been stated that in case of delay, no claim by way of damages/compensation will be provided to the purchaser of unit. It would mean that the opposite parties can delay and hand over possession after unlimited period. Such a situation cannot be appreciated and this would mean to again indulging into unfair trade practice. What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Honble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Honble National Commission, on wherein, it was argued by the project proponent that at the maximum, as06.05.2016, provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:- Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015. Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.
Not only this, in another case, titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:- 8. If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.
9. xxxxxxxxxxxxx
10. For the reasons stated hereinabove, the complaints are disposed of with the following directions: (1) xxxxxxxxxxxxxx (2) The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate. Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice. The objection taken by the opposite parties, to the effect that the complainant being investor, did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. On the other hand, in the rejoinder filed, it has been clarified by the complainant that he has purchased the said unit, for his residential purpose. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion i.e. simply saying that the complainant being investor, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra , by the NationalEstate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31 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 . TheDLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316 principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a consumer, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, in their written reply, therefore, being devoid of merit, is rejected. 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 from the Allotment Letter/Agreement, containing detailed terms and conditions, is executed between the parties at Chandigarh. Besides as above, all the letters placed on record, clearly goes to reveal that the same have been issued by Chandigarh Office of the Company, as its first address therein is mentioned as SCO 143-144, First Floor, Sector 8C, Madhya Marg, Chandigarh. 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 parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. Another objection taken by the opposite parties, with regard to pecuniary jurisdiction of the Commission, also deserves rejection. It may be stated here, that the complainant has sought possession of the unit, in question, price whereof is Rs.57,45,998.50Ps. (as is evident from the document at page 41 of the file); interest @18% on the deposited amount for the period of delay in delivery of possession; compensation to the tune of Rs.2 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.25,000/-, aggregate value whereof 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 the opposite parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected. As has been held above that by offering Allotment Letter/Agreement for signing after a period of 15 months, from the date of receiving substantial amount, the opposite parties have indulged into unfair trade practice. Interest could have been granted for those 15 months, on the amount deposited, however, we are not doing so because we are going to award additional lump-sum amount for adoption of unfair trade practice, to the complainant, in this regard. As such, if compensation to the tune of Rs.1.50 lacs, on this count, is granted that would meet the ends of justice and will definitely put a naught on the opposite parties, for doing so, in future. The next question, that falls for consideration, is, as to whether, the complainant is entitled to delivery of possession of the unit. As stated above, according to Clause 23 (b) of the Allotment Letter/Agreement, subject to force majeure conditions and reasons, beyond the control of the opposite parties, they were liable to deliver physical possession of the unit, within a period of 24 months plus (+) 6 months grace period, total 30 months, from the date of issuance of Allotment Letter/Agreement. However, it is an admitted fact that possession of the unit, in question, has not been offered, by the date of filing the instant complaint, or even till date, despite the fact that Rs.49,24,264.01Ps., out of Rs.57,45,998.50Ps. has been paid by the complainant, for want of basic amenities at the site. By making a misleading statement, that possession of the unit, was to be delivered within the maximum period of 30 months from the date of Allotment Letter/Agreement i.e. latest by 25.09.2015, and by not abiding by the commitment, made by the opposite parties, they were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant is certainly entitled to physical possession of the unit, in question. The opposite parties are also liable to pay compensation to the complainant, for causing mental agony, physical harassment and deficiency in providing service. As far as the objection taken by the opposite parties, regarding limitation is concerned, the same deserves rejection. It may be stated here that, in the instant case, neither possession of the unit has been offered nor delivered to the complainant, by the stipulated date or even till date, for want of construction and basic amenities at the site, nor compensation for the period of delay, was paid to him, as such, there is a continuing cause of action, in favour of the complainant, to file the complaint, in view 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). . Under these circumstances, it is held that the complaint was not at all barred by time. The objection taken by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected. 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. 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.
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. A judicial authority before which an action is brought in a matter which is(1) 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. The application referred to in sub-section (1) shall not be entertained unless(2) it is accompanied by the original arbitration agreement or a duly certified copy thereof. Notwithstanding that an application has been made under sub-section (1)(3) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.
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 , ( ) etc., cameLimited Vs. Aghore Bhattacharya and others Civil Appeal No.20923 of 2013 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. 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. A judicial authority, before which an action is brought in a matter which is the(1) subject of an arbitration agreement shall, if a party to the arbitration agreement or so applies not later than any person claiming through or under him, the date of first statement on the substance of the dispute, submitting his 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 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. 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. 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/-. 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 parties. 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 Arbitrators 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. 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 unit, in question, in the said project, launched by the opposite parties. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the constructed unit, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural (2004) 1 SCC 305 and United India Insurance Co. Ltd. v. Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV the consumers are always in a weak position, and in cases where two(2011) CPJ 4 (SC), 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. 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 . Relevant portion of the said case, reads thus:-of 2013, decided on 02.05.2016
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 Honble 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.
-10- In view of the above, objection raised by the opposite parties, 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. No other point, was urged, by Counsel for the parties. For the reasons recorded above, the complaint is partly accepted, with costs. The opposite parties are jointly and severally directed as under:- To hand over physical possession of the flat, in question, to the complainant, within a period of 02 months, from the date of receipt of certified copy of this order, complete in all respects, after obtaining occupation and completion certificates, from the competent authorities, on receipt of legally due amount from him (complainant). To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainant, within two months, from the date of handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by him to the Registering Authorities. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, from 25.09.2015 (promised date) to 30.11.2016, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization. To pay compensation by way of interest @12% p.a. on the deposited amount, w.e.f. 01.12.2016, onwards (per month), till delivery of possession, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made. To pay compensation, in the sum of Rs.1.50 lacs, for adopting unfair trade practice, by not getting the Allotment Letter/Agreement signed within a reasonable period, after receiving substantial amount from the complainant, as indicated above, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization. To pay compensation, in the sum of Rs.02 lacs, on account of mental agony, physical harassment, caused to the complainant and deficiency in providing service, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization. To pay cost of litigation, to the tune of Rs.25,000/- ( to the complainant,as prayed) within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to Record Room, after completion. Pronounced. 22.11.2016 Sd/- -11- [JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/- (DEV RAJ) MEMBER Sd/- (PADMA PANDEY) MEMBER -12-