STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 88 of 2018 Date of Institution : 26.02.2018 Date of Decision : 03.12.2018 Chandani w/o Sh. Praveen Kumar Rai, r/o Flat No.D-504, Horizon Society, Lane in front of Tranquille Society, Datta Mandir Road, Wakad, Pune 411057, Maharashtra. Praveen Kumar Rai s/o Sh. Umesh Rai, r/o Flat No.D-504, Horizon Society, Lane in front of Tranquille Society, Datta Mandir Road, Wakad, Pune 411057, Maharashtra. Complainants V e r s u s Sushma Buildtech Limited having its office at Unit No.B-107, Business Complex, Elante Mall, 1 Floor, Industrial Area, Phase I, Chandigarh 160002 through its Wholetimest Director Sh.Bharat Mittal. Bharat Mittal, Wholetime Director of M/s Sushma Buildtech Limited, r/o H.No.233, Sector 7, Panchkula 134109. Binder Pal Mittal, Managing Director of M/s Sushma Buildtech Limited, r/o H.No.233, Sector 7, Panchkula 133001. Pardeep Kumar, Director of M/s Sushma Buildtech Limited, r/o H.No.840/1, Ram Darbar Colony, Phase 2, Chandigarh 160028. ... Opposite Parties BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT MRS. PADMA PANDEY, MEMBER MR.RAJESH K. ARYA, MEMBER Argued by: Sh. Savinder Singh Gill, Advocate for the complainants. Sh. Sanjeev Sharma, Advocate for the Opposite Parties. PER PADMA PANDEY, MEMBER The facts, in brief, are that the complainants purchased apartment No.F-101, Tower F in the residential complex known as Sushma Chandigarh Grande in resale on 01.12.2012. Allotment letter dated 01.12.2012 was issued in favour of the complainants (Annexure C-1). Thereafter, Apartment Buyers Agreement was executed between the parties on 04.12.2012 at Chandigarh (Annexure C-3). It was stated that as per Clause 14(d) of the Agreement, possession of the said unit was to be delivered within a period of 42 months from the date of execution of the Agreement alongwith a grace period of 6 months thereby making it a total of 48 months (i.e. 4 years). It was further stated that out of the total sale consideration of Rs.66,62,080/-, the complainants paid the total amount of Rs.62,49,847/- (Annexure C-2 Colly.). It was further stated that the complainants also availed a loan from Housing Development Finance Corporation Limited (HDFC) Bank. It was further stated that the complainants wrote an email dated 29.04.2017 (Annexure C-4) to the Opposite Parties asking refund of the amount paid but they did not bother to reply to the same. It was further stated that despite receipt of the huge amount from the complainants, the Opposite Parties failed to deliver possession of the unit, in question. The aforesaid act of the Opposite Parties amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the Act only), was filed.
2. The Opposite Parties, in joint written version, have taken objection regarding arbitration clause in the Agreement and prayed that the matter should be referred to Arbitrator. It was further stated that the complainants did not fall within the definition of Consumer as prescribed under Section 2(d) of the Consumer Protection Act, 1986, as they have shifted to Pune in June, 2014 and they have no intention to return and reside at Zirakpur and also the real estate prices have not picked pace in recent years, as such, they purchased the unit solely for speculation purposes. It was further stated that this Commission has no territorial jurisdiction to try this complaint, as the property is located at Zirakpur, Punjab. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint, as the total claim of the complainants exceeds Rs.1 crore. It was admitted regarding purchase of the unit ; execution of the Agreement and receipt of the amount of Rs.62,49,847/- from the complainants. It was further stated that as per the Agreement, the replying Opposite Parties endeavor to hand over possession of the unit within 48 months from the date of execution of the Agreement, as the Opposite Parties have specifically mentioned that they would try and endeavor to hand over possession within 42 months alongwith grace period of 6 months. Thus, there was no definitive agreement stating possession would definitely be delivered within 48 months. It was further stated that as per Clause 14(d), in case the Company fails to give possession of the said unit within the aforesaid period then the Company shall pay to the buyer Compensation/penalty @Rs.5/- per sq. ft. of the super built up area per month for the entire period of delay. It was further stated that the Opposite Parties are expediting the development and stands committed to hand over possession of the unit by September October, 2018 and also committed to pay compensation to the complainants at the time of conveying the unit in their favour. It was further stated that once the complainants have agreed to accept compensation/penalty for delay, by signing and agreeing to the Buyer Agreement, the complainants cannot seek case possession within 48 months. It was further stated that Opposite Parties No.2 to 4 are not necessary parties and have wrongly been arrayed in the present case, as such, their names should be deleted from the array of the parties. It was further stated that a perusal of Annexure C-6 as relied by the complainants does not reveal that the said annexure has been downloaded from the site of Registrar of Companies as there is no mention of name of website from where the complainants have filed this information. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.
3. The complainants, filed rejoinder to the written statement of the Opposite Parties, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.
4. The Parties led evidence, in support of their case.
5. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
6. First, we will deal with an objection, raised by the Opposite Parties, that in the face of existence of provision 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. It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as , whileSarbjit Singh Vs. Puma Realtors Private Limited, IV (2016) CPJ 126 relying upon ratio of judgments of the Honble Supreme Court, titled as 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 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 and held that even in the face of existence ofanother Vs. Hira Lal, IV (2011) CPJ 4 (SC), arbitration clause in an Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer vide order dated 13.07.2017, has held that an Arbitration Clause in theCase No. 701 of 2015, Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Honble Supreme Court of India, which was dismissed vide order dated 13.02.2018. In view of above, the objection raised by the Opposite Parties, in this regard, being devoid of merit is rejected.
7. 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 complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that Apartment Buyers Agreement was executed between the parties at Chandigarh on 04.12.2012 (Annexure C-3). Not only this, allotment letter (Annexure C-1), acknowledgments Annexure C-2 (page Nos. 17 to 27 of the file) and Tripartite Agreement (Annexure C-5), in which, it has been clearly mentioned Corp. Off. : SCO 172-173, First Floor, Sector 9-C, Chandigarh. Since, as per the document, referred to above, a part of cause of action arose to the complainants, 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.
8. The next question, that falls for consideration, is, as to whether, the complainants fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. The Opposite Parties in their written statement stated that complainants did not fall within the definition of Consumer, as they purchased the unit, in question, solely for speculation purposes. After going through the record, we are of the view that the objection taken by the Opposite Parties does not carry any weight and is liable to be rejected. It is pertinent to note that the complainants have mentioned in para No.1 of their complaint that they were willing to own a residential apartment in Zirakpur for their family and perusal use. Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainants, was sufficient to prove that it was to be used for the purpose of residence, by the complainants. There is nothing, on the record, that the complainants are property dealers. 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 complainants purchased the property for speculation purposes, as such, they did not fall within the definition of a consumer, cannot be taken into consideration. Further, in a case titled as Kavita , Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31 decided 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 The DLF 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 complainants, thus, fall 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.
9. Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on Relevant part of the said order reads thus:-07.10.2016. It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that its 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 present case, if total sale consideration of the unit, in question i.e. Rs.66,62,080/- plus compensation claimed by way of interest @10% p.a. on the amount deposited to the tune of Rs.62,49,847/-; compensation to the tune of Rs.1 lac claimed for mental agony and physical harassment, till the date of filing this complaint, is taken into consideration, it exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide this 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.
10. Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company only endeavored to deliver possession of the unit within maximum period of 48 months from the date of execution of the Agreement, as per Clause 14(d) of the Agreement, as such, no definite assurance was given, therefore, time was not to be considered as the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 14(d) of the Agreement that possession of the unit will be delivered by the Opposite Parties, within a maximum period of 42 months + grace period of 6 months i.e. 48 months, from the date of execution of the Agreement, subject to force majeure circumstances or reason beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 14(d) of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 48 months, from the date of execution of the Agreement, as such, time was, unequivocally made the essence of contract. At the same time, the Opposite Parties, also cannot evade their liability, merely by saying that since the words shall endeavor/try/propose etc. was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 which says that the project proponent is duty bound to specify, in writing, the date by(PAPRA), which possession of the unit is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:- (g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly; Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyers Agreement/allotment letter, 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 plots/unit(s) to the allottees/purchasers thereof. It was so said by the Hon`ble National Commission, in Rajeev . Relevant Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769 portion of the said case reads thus:- Merely making possession by a particular date will also notendeavour to deliver 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 Parties in this regard also stands rejected.
11. The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainants. As per Clause 14(d) of the Agreement, possession of the unit was to be delivered to the complainants within a maximum period of 48 months from the date of execution of the Agreement. In the instant case, Agreement was executed between the parties on 04.12.2012 and, as such, possession was to be delivered to the complainants latest by 03.12.2016 and not more than that.
12. The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the deposited amount. It is the admitted fact that the complainants deposited the total amount of Rs.62,49,847/- in respect of the unit, in question. As per the Agreement, possession was to be delivered by the Opposite Parties within a maximum period of 48 months from the date of execution of the Agreement, which expired on 03.12.2016 but after receipt of the huge amount from the complainants, the Opposite Parties failed to deliver possession of the unit, in question, complete in all respects to the complainants within the stipulated time frame as mentioned in the Agreement or even by the time when the complaint was filed. So, the complainants are certainly entitled to get refund of amount of Rs.62,49,847/- deposited by them. In
iii. view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.
13. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.62,49,847/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. The Opposite Parties were charging rate of interest @24% p.a., as per Clause 7.4(b) of the Agreement, for the period of delay in making payment of installments. 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. In the facts and circumstances of the case, the complainants are held entitled to get refund of the amount deposited by them, to the tune of Rs.62,49,847/- alongwith simple interest @10% p.a. (as prayed for), from the respective date of purchase of unit i.e. 01.12.2012 till realization.
14. As far as the plea taken by Counsel for the Opposite Parties at the time of arguments, regarding forfeiture clause is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that they were ready with possession of the unit, to be delivered to the complainants, complete in all respects, as per terms and conditions contained in the Agreement, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and are seeking refund of the amount deposited. Since it was the Opposite Parties, who had defaulted in honouring the terms and conditions of the Agreement, hence, the Opposite Parties cannot forfeit any amount of money paid by the complainants. In this view of the matter, the plea taken by the Opposite Parties, in this regard, have no legs to stand and are accordingly rejected.
15. Since, it has already been held that the complainants are entitled to refund of the amount deposited, alongwith interest and compensation, as such, the plea taken by the Opposite Parties to the effect that they are ready to pay penalty amount for the period of delay, in delivery of possession cannot be considered, at this stage. If the Opposite Parties are allowed to invoke this Clause of the Agreement, in the instant case, regarding payment of penalty, that would amount to enriching them, at the cost of the complainants. The defence taken is accordingly rejected.
16. No other point, was urged, by the Counsel for the parties.
17. For the reasons recorded above, the complaint is allowed, with costs. The Opposite Parties are jointly and severally directed, as under:- To refund the amount Rs.62,49,847/-, to the complainants, alongwith interest @10% p.a. (as prayed for), from the respective dates of purchase of the unit i.e. 01.12.2012 onwards. To pay compensation, in the sum of Rs.1.00 lac, for causing mental agony and physical harassment, to the complainants, as also escalation in prices. To pay cost of litigation, to the tune of Rs.33,000/- to the complainants. 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 amount mentioned at sr.no.(i) thereafter shall carry penal interest @12% p.a., instead of 10% p.a. from the date of default, and interest @10% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
18. However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
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. . December 3 , 2018 rd [JUSTICE JASBIR SINGH (RETD.)] [PRESIDENT] (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER