Citation Codes

Equivalent Citations

citation codes

Case Number

CC/711/2019

Attorney(S)

Acts

Section 14 of the Punjab Apartment and Property Regulations Act, 1995 (in short, PAPRA)
Section 8 of the Arbitration Act. Civil Appeal No.(s) 23512-23513 of 2017 (M/s
Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, C.P. Act)
Rule 17 of the Punjab Apartment and Property Regulation Rules, 1995,
Section 9 of the PAPRA. Consumer Complaint No.711 of 2019 14
Section 272 of the Punjab Municipal Corporation Act, 1976.
Section 17(1)(a)(i) of the Consumer Protection Act, 1986.
SECTION 8 ARBITRATION AND CONCILIATION ACT 1996
sub-section (1) of section 6

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Smart Summary

Judgment Summary — Consumer Complaint No.711 of 2019

Factual and Procedural Background

The complainant, Mr. Ravinder Goel, filed a consumer complaint on 25.09.2019 under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 against (i) M/s Sandwoods Infratech Projects Pvt. Ltd., (ii) Uma Bagolia (Director of Sandwoods) and (iii) Greater Mohali Area Development Authority (GMADA). The complaint arises from the purchase of an apartment in the "Sandwood Opulentia" project in Sector 110, SAS Nagar, Mohali. A provisional allotment was issued (28.05.2012), payments were made (ledger Ex.C-5), and an apartment buyer's agreement was executed on 30.06.2014 describing the unit, price and a possession timeline (36 months + 6 months grace; possession due by 31.12.2017).

The complainant alleged delay and defective/incomplete delivery: possession was offered on 11.08.2018 as a "pre-possession" and without occupation/completion certificate; OPs demanded additional payment for increased area; many promised amenities were not provided; and GMADA confirmed no occupation certificate had been issued (RTI reply dated 27.08.2019). The complainant sought refund of amounts paid (claimed Rs.52,40,098/-), interest, compensation for mental harassment, and litigation costs.

Opposite parties filed replies raising maintainability objections (arbitration clause, territorial and pecuniary jurisdiction, allegation that complainant was an investor not a consumer) and denying deficiency in service. Evidence and documents were placed on record by both sides (complainant: Ex.C-1 to Ex.C-14; OPs: affidavits and documents including partial completion notice Ex.OP-1 and structural stability certificate Ex.OP-2; GMADA affidavit from District Town Planner).

Legal Issues Presented

Whether the complainant qualifies as a "consumer" under the Consumer Protection Act, 1986 for the purchased flat/unit.
Whether the arbitration clause in the apartment buyer's agreement (clause 25) ousts the jurisdiction of the Consumer Forum to entertain the complaint.
Whether clause(s) in the agreement restricting territorial jurisdiction to courts at New Delhi or limiting jurisdiction otherwise are binding on the Consumer Forum.
Whether the opposite parties committed deficiency in service and unfair trade practice by failing to deliver possession (with completion/occupation certificate and promised amenities) within the stipulated/reasonable time and by misusing the amounts paid by the complainant.
If deficiency/unfair trade practice is found, what reliefs (refund, interest, compensation, costs) are appropriate and in what amount?

Arguments of the Parties

Complainant's Arguments

The complainant purchased an apartment in the Sandwood Opulentia project and paid substantial instalments (almost 95% of the sale consideration as alleged).
Possession was to be handed over within 36 months plus 6 months grace (latest by 31.12.2017) but was not delivered on time; possession offered on 11.08.2018 was incomplete ("pre-possession") and no occupation/completion certificate was provided.
OPs demanded additional payment for an increased area without complainant's consent and failed to provide promised amenities; GMADA confirmed no occupation certificate has been issued.
Sought refund of amounts paid, interest, compensation for mental harassment and litigation costs for alleged deficiency in service and unfair trade practice.

Opposite Parties' Arguments (OP Nos.1 & 2)

Preliminary objections: complaint not maintainable because (a) arbitration clause (clause 25) requires reference to arbitration, (b) territorial jurisdiction is restricted to courts at New Delhi by clause 27 of the agreement, and (c) pecuniary jurisdiction is absent as subject matter exceeds Rs.1 crore.
Substantive defenses: possession was offered on 11.08.2018 (Ex.C-7); penalty for late offer was credited to complainant (Rs.87,680/-); area increase and demand for additional payment are permissible under clauses 1(a) & 1(d) of the agreement; any finishing work is provided when allottees choose possession date; alleged deficiencies were minor and addressed; complainant has not cleared outstanding dues to take possession.
Contended complainant was an investor and thus not a "consumer" within the C.P. Act.

Opposite Party No.3 (GMADA) — Arguments

GMADA stated it had issued license to the promoter but had not issued any completion certificate to OP nos.1 & 2 for the group housing colony; GMADA asserted it had not charged any amount from the complainant and that the complainant was therefore not its consumer.
Denied deficiency in service or unfair trade practice on its part and sought dismissal of the complaint as against it.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS (First Appeal No.1358 of 2016) — decided 29.11.2016	Held that mere assertion that purchasers are investors is insufficient; absence of cogent evidence of commercial intention leads to treating purchasers as consumers.	Court relied on this precedent to reject the OPs' contention that the complainant was not a consumer because he allegedly bought for investment; found no evidence OPs produced to prove commercial purpose and held the complainant to be a consumer under the C.P. Act.
Kavita Ahuja & Others v. Shipra Estate Ltd. & Others (Consumer Case No.137 of 2010) — decided 12.02.2015	Earlier authority relied upon by the National Commission in consumer-status determinations where appellants failed to show buyers were engaged in trading properties for profit.	Cited by the court as part of the line of authority supporting the view that the complainant is a consumer in absence of evidence of trading for profit.
Aftab Singh v. EMAAR MGF Land Limited & Anr (Consumer Complaint No.701 of 2015; order dated 13.07.2017) and Civil Appeal Nos. 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. vs. Aftab Singh)	Held by the National Commission's Larger Bench that arbitration clauses in such builder‑allottee agreements do not oust the jurisdiction of consumer fora; Apex Court dismissed appeals and review petitions, reinforcing that arbitration clause is not a bar to consumer fora.	Court applied these authorities to reject OPs' contention that clause 25 (arbitration) prevents the Commission from hearing the complaint; accordingly, arbitration clause was held not to oust the Commission's jurisdiction.

Court's Reasoning and Analysis

The Commission considered the pleadings, documents and oral submissions. It proceeded through a sequence of legal determinations tied directly to evidence on record:

Consumer status: The court examined OPs' assertion that the complainant purchased the flat for investment. Finding no cogent evidence from OPs to prove commercial intent, the court followed the cited precedents (IREO Fiveriver and Kavita Ahuja) and held the complainant to be a "consumer" under the C.P. Act.
Arbitration clause: The court addressed clause 25 (arbitration) in light of the Larger Bench decision in Aftab Singh and subsequent dismissal of appeals by the Apex Court. Relying on that line of authority, the Commission held that an arbitration clause of the kind in the agreement cannot circumscribe the jurisdiction of a consumer forum; the objection was therefore rejected.
Territorial jurisdiction: The court noted the settled law that parties cannot oust the territorial jurisdiction of consumer fora by contract. Since the project is located in SAS Nagar, Mohali (Punjab), the Commission had territorial jurisdiction to try the complaint; the contractual clause naming Delhi Courts was ineffective to deprive the Commission of jurisdiction.
Merits — delay, incompleteness and statutory compliance: The court inspected the documentary record (payments shown in Ex.C-5 up to 31.03.2018; possession offered 11.08.2018; RTI reply from GMADA dated 27.08.2019 showing no occupation certificate issued). Photographs (Ex.C-14) and the absence of completion/occupation certificate supported the finding that the project was not fully developed and that OPs had not fulfilled their obligations.
Statutory duties under PAPRA: The Commission examined provisions of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA) and Rules:
- Section 3 (General liabilities of promoter): Requires full disclosure of title/encumbrances and inspection rights. The court found OPs failed to comply with Section 3.
- Section 9: Requires promoter to maintain a separate bank account for amounts collected from buyers. No evidence was produced by OPs that such an account was maintained; court found a violation.
Misrepresentation and deficiency: The court concluded that OPs misrepresented development and delivery timelines and thereby committed deficiency in service and unfair trade practice, causing loss and mental harassment to the complainant. The court emphasized the benevolent object of the C.P. Act to protect consumers from such exploitation.
Relief quantification: The complainant sought refund of Rs.52,40,098/-. The court relied on the complainant's own ledger (Ex.C-5) which showed deposits of Rs.48,17,373/-. In absence of other receipts/statement proving a higher deposit, the court limited the refund to Rs.48,17,373/-. The court awarded interest at 12% per annum from the respective dates of deposits until actual payment — citing Rule 17 of the Punjab Apartment and Property Regulation Rules, 1995 (which prescribes 12% p.a. interest on refunds of advance money). The court also awarded compensation of Rs.50,000/- for mental tension/harassment and litigation costs.
Specific contract disputes: The court considered the complainant's objections to change of flat number and increase of area. It held that the complainant had signed the buyer's agreement (Ex.C-4) containing the change of apartment and had not objected contemporaneously; therefore no deficiency arose on that point. Clause 1(a) and 1(d) (area tentative/increase payable on demand) were noted; the court declined to decide the area point at length because the refund determination made the point unnecessary for the final relief.
Relief as against GMADA: Since GMADA had not issued any completion certificate and had not charged the complainant, the court dismissed the complaint against GMADA (OP no.3).

Holding and Implications

Holding: COMPLAINT ALLOWED AGAINST OP NOS.1 & 2; DISMISSED AGAINST OP NO.3.

Direct orders and immediate consequences (as given in the opinion):

OP nos.1 and 2 are directed to refund Rs.48,17,373/- to the complainant (amount established on ledger Ex.C-5) along with interest at the rate of 12% per annum from the respective dates of deposit until actual payment (interest computed from dates of deposit of different amounts as per record).
OP nos.1 and 2 are directed to pay Rs.50,000/- to the complainant as compensation for mental tension and harassment (this amount also covers litigation costs as identified in the order).
OPs are to comply with the order within one month from receipt of a certified copy.
The complainant is permitted to produce receipts/evidence for any additional amount claimed (Rs.4,22,725/- claimed by complainant but not supported by Ex.C-5) and, if established, OPs are directed to refund that balance on production of such evidence.

Broader implications: The Court applied established precedents to reinforce two principles: (i) a bare contractual arbitration clause cannot deprive consumer fora of jurisdiction in housing/real-estate allotment disputes of this kind, and (ii) a buyer is to be treated as a consumer unless the seller adduces cogent evidence that the buyer purchased for commercial resale. The decision enforces statutory protections under PAPRA (Sections 3 & 9) and Rule 17 of the PAPRA Rules regarding interest on refund of advance money. The order is remedial and directed to redress the complainant's loss; the opinion does not purport to lay down any novel legal principle beyond applying existing authorities cited in the text.

Sources relied upon for this summary: the provided opinion text of Consumer Complaint No.711 of 2019, dated 07.02.2020 (2nd Additional Bench, State Consumer Disputes Redressal Commission, Punjab, Chandigarh).

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Ravinder Goel v. M/s Sandwoods Infratech Projects Pvt. Ltd.

2nd Additional Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH. Consumer Complaint No.711 of 2019 Date of institution : 25.09.2019 Reserved on : 27.01.2020 Date of decision : 07.02.2020 Mr. Ravinder Goel S/o Late Sh. M.L. Goel, resident of SD-285, Pitampura, Delhi-110034. .Complainant Versus

1. M/s Sandwoods Infratech Projects Private Limited, SCO 222- 223, Sector 34-A, Chandigarh, through its Authorized Signatory. E-mail ID info@sandwoods.com

2. Uma Bagolia, Director, Sandwoods Infratech Projects Private Limited, SCO 222-223, Sector 34-A, Chandigarh. E-mail ID info@sandwoods.com

3. Greater Mohali Area Development Authority (GMADA), PUDA Bhawan, Sector 62, SAS Nagar, Mohali, through its Chief Administrator. E-mail ID eo@gmada.gov.in ..Opposite Parties Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986. Honble Mr. Justice Paramjeet Singh Dhaliwal, President Mr. Rajinder Kumar Goyal, Member Ms. Kiran Sibal, Member Present:- For the complainant : Sh. Sandeep Khunger, Advocate with Ms. Nitika Jaura, Advocate For OPs no.1&2 : Sh. Nihal Singh, Advocate For OP no.3 : Sh. G.S. Arshi, Advocate Consumer Complaint No.711 of 2019 KIRAN SIBAL, MEMBER: The complainant has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, C.P. Act) for issuance of following directions to the opposite parties (in short "OPs"):-

i) to refund Rs.52,40,098/- to the complainant along with interest @ 10% per annum from their respective date of deposits; ii) to pay Rs.5,00,000/-, as compensation, on account of mental harassment and damages suffered by complainant due to deficiency in service on the part of OPs; and iii) to pay Rs.1,10,000/-, as litigation cost. Facts of the Complaint:

2. Brief facts, as averred in the complaint, are that OP nos.1 and 2 had launched a housing project in Sector 110, SAS Nagar, Mohali; named Sandwood Opulentia. OP nos.1 and 2 allured the complainant to purchase an apartment by showing rosy pictures, as mentioned in brochure, Ex.C-1. The complainant with a view to settle his son in Chandigarh, purchased apartment no.24 in tower no.A on 12th Floor, measuring 1950 square feet in Sandwoods Opulentia, Sector 110, SAS Nagar, Mohali from OP nos.1 and 2. The sale price of the flat was @Rs.2600/- per square feet of super area. A provisional allotment letter dated 28.05.2012 was issued to complainant for flat no.119 in Tower-C. The complainant made the payment of Rs.10,14,000/- by way of cheques, vide Ex.C-2. Thereafter, apartment buyer's agreement dated 30.06.2014 was Consumer Complaint No.711 of 2019 entered into between OP nos.1 & 2 and complainant, whereby flat no.119 in Tower-C was changed to flat no.24 in Tower-A on 12th floor, measuring 1950 square feet mentioning the total sale consideration of flat as Rs.51,30,000/- inclusive of external development charges. Alongwith the buyer's agreement, schedule of payments plan was also provided. As per clause no.6 of the said agreement, the possession of the flat was to be handed over to the complainant within 36 months from the date of the execution of the said agreement with a grace period of six months i.e.31.12.2017 after obtaining the completion and occupation certificate from the competent authority. OP nos.1 and 2 failed to deliver the possession of the flat on the promised date. He almost paid 95% of the total sale consideration by way of installments from time to time, as and when demanded by OP nos.1 and 2. Copy of ledger account is Ex.C-5. OP nos.1 and 2 offered the possession of the said flat, vide letter of offer of possession dated 11.08.2018, whereby it was informed to the complainant that the area of the flat had been increased from 1950 square feet to 2192 square feet and demanded Rs.3,52,352/- more from him without his consent. OP nos.1 and 2 credited an amount of Rs.87,680/- towards penalty and late offer of possession. They offered the possession of the flat mentioning therein that the flat has been kept in 'Pre-Possession Stage' without completing the final cost of paint, polishing, sanitary fittings and other fixtures etc., which meant that incomplete possession was offered to him. In protest, on the same day, complainant sent an email dated 11.08.2018 to OP Consumer Complaint No.711 of 2019 nos.1 and 2 and on 14.11.2018. Vide email dated 15.12.2018 and 09.05.2019 complainant asked OP nos.1 and 2 to provide the occupation certificate, but to no effect. In reply to application under RTI Act of complainant, GMADA sent letter dated 27.08.2019 and informed that OP nos.1 and 2 have not been issued the occupation certificate till date. As such the possession letter dated 11.08.2018 was only a paper possession. The basic amenities and facilities like Elite Club House, swimming pool, well-equipped gymnasium, modular kitchen with chimney, HOB, water purified, cooking gas, through pipe line and convenience shop for daily needs, tennis court and badminton court have also not been provided, as promised by OP nos.1 and 2. Some of the photographs showing the lack of promised facilities are Ex.C-14 on the record. The complainant has alleged deficiency in service and unfair trade practice on the part of OP nos.1 and 2 and prayed for acceptance of complaint. Defence of Opposite Parties:

3. Upon notice, OP nos.1 & 2 and 3 appeared and filed separate reply.

4. OP nos.1 and 2 raised preliminary objections to the effect that the complaint is liable to be dismissed being not maintainable. The possession has already been offered to the complainant, vide letter dated 11.08.2018 (Ex.C-7). Qua delay in offer of possession, complainant himself admitted receipt of Rs.87,680/- towards penalty and late offer of possession. The grouse of complainant regarding non-providing of amenities/facilities is without any basis. Once Consumer Complaint No.711 of 2019 agreement has been executed between the parties, same supersedes the advertisement/brochure etc. Both the parties are bound by the terms and conditions of the agreement. The answering OPs provided all the amenities/facilities as promised in the agreement and increased the area as per clause 1(a) & 1(d) of the agreement they demanded the amount of the increased area from complainant and grievance qua the same is without any basis and deserves to be dismissed. The answering OPs applied for completion certificate vide Ex.OP-1 and the issuance of certificate is in the hands of concerned authorities and the same has not been supplied by concerned authority, the same is deemed to have been granted in terms of Section 272 of the Punjab Municipal Corporation Act, 1976. There is a clause 25 in the agreement for referring the dispute for arbitration to the Arbitrator, hence this Commission does not have jurisdiction to entertain the present complaint. This Commission has no territorial jurisdiction as per clause 27 of the agreement, which clearly states that Courts at New Delhi shall have jurisdiction in all matters in connection with the allotment. This Commission does not have pecuniary jurisdiction as subject matter in the instant complaint exceeds Rs.1 crore. The complainant is guilty of suppressio veri and suggestio false and complaint ought to be dismissed on this ground alone. The complainant is not consumer, as he purchased the said flat for the purpose of invest. On merits, it is denied that answering OPs changed flat number of the complainant. In fact, apartment was changed on oral request of Consumer Complaint No.711 of 2019 complainant. The possession of the said unit was offered to complainant on 11.08.2018, but he is not coming forward to take the same after clearing the outstanding dues. It is clarified that since allottees choose their date of taking possession as per their convenience, which may vary in months after the possession is offered, therefore, the final finishing touches are only given as per the date chosen, so as to provide fresh possession. So, it cannot be said that the possession was given without providing all the promised amenities and facilities. The unit was complete in all respects, however, to satisfy the complainant, the minor discrepancies, as pointed out by the complainant, were duly redressed. Further, emails sent by the complainant are unwarranted correspondence and through telephonic conversations his grievances were redressed, but despite that he remained adamant not to come forward to take the possession of the said unit. The photographs appended by complainant do not reflect the true pictures. Answering OPs controverted the other averments and denied any deficiency in service and unfair trade practice on their part. OP nos.1 and 2 prayed for dismissal of the complaint.

5. OP no.3, GMADA, filed its separate written reply raising preliminary objections that there is no deficiency in service and unfair trade practice on the part of answering OP and complaint is liable to be dismissed. OP no.3 has not charged any amount from complainant, as such he is not consumer of OP no.3. On merits, it is averred that OP i.e. M/s Sandwood Infratech Private Limited was Consumer Complaint No.711 of 2019 issued the license no.12/2013 dated 06.05.2013 to develop the residential colony, namely "Sandwood Opulencia" in Sector-110, SAS Nagar and no completion certificate has been issued to the OP nos.1 and 2 by OP no.3. OP no.3 controverted the other averments of complainant and denied any deficiency in service and unfair trade practice on its part. OP no.3 prayed for dismissal of complaint against answering OP. Replication of the Complainant:

6. The complainants filed replication to the reply filed by the OPs controverting the averments made in the reply and reiterating the averments made in the complaint. Evidence of the Parties:

7. In support of his case, the complainant annexed with the complaint affidavit and documents i.e. Ex.C-1 online advertisement and brochure, Ex.C-2 application and cheque, Ex.C-3 provisional allotment letter, Ex.C-4 buyer's agreement, Ex.C-5 ledger account, Ex.C-6 email dated 10.10.2017, Ex.C-7 letter of possession dated 11.08.2018. Ex.C-8 to C-11 emails, Ex.C-12 application under RTI Act dated 22.07.2019 and reply dated 27.08.2019 Ex.C-13 and Ex.C-14 photographs. On the other hand, OP nos.1 and 2 annexed with the reply affidavit of their Authorized Representative Shri Jasmeet Singh and document Ex.OP-1, the notice of partial completion dated 17.09.2018, Ex.OP-2, the structural stability certificate dated 23.02.2019. OP no.3 filed affidavit of Mandip Mendiratta, District Town Planner (Licensing) only. Consumer Complaint No.711 of 2019 Contentions of the Parties:

8. We have carefully gone through the averments of the parties and the evidence produced by them in support of those averments. We have also heard learned counsel for the parties.

9. Learned counsel for complainant contended OP nos.1 and 2 issued provisional allotment letter dated 28.05.2012 of the said flat in above project to complainant. He made the payments of Rs.10,14,000/- by way of cheques, vide Ex.C-2. Apartment buyer's agreement dated 30.06.2014 was entered into between OP nos.1 &

2 and complainant. OP nos.1 and 2 changed flat no.119 in Tower-C to flat no.24 in Tower-A on 12th floor, measuring 1950 square feet mentioning the total sale consideration of flat as Rs.51,30,000/- inclusive of external development charges. The possession of the flat was to be handed over to the complainant within 36 months from the date of the execution of the said agreement with a grace period of six months i.e. latest by 31.12.2017 after obtaining the completion and occupation certificate from the competent authority, as per Clause no.6 of the agreement. He already paid paid 95% of the total sale consideration by way of installments, but OP nos.1 and 2 failed to deliver the possession of the flat on the promised date, vide Ex.C-

5. Vide letter dated 11.08.2018, the offer of possession, it was informed to complainant that the area of the flat has been increased from 1950 square feet to 2192 square feet and demanded Rs.3,52,352/- more from him and also credited an amount of Rs.87,680 towards penalty and later offer of possession. Consumer Complaint No.711 of 2019 Complainant protested the same asked to provide the occupation certificate. OP nos.1 and 2 have not obtained any completion/occupation certificate from competent authority. Alleging deficiency in service and averring on the similar lines, as pleaded in complaint, counsel prayed for acceptance of the complaint.

10. Per contra, it was vehemently argued by the learned counsel for OPs that complainant is not consumer as defined under the C.P. Act, as he invested his money in order to earn profits in resale. As per clause 25 of the Apartment Buyers Agreement, the matter is required to be referred to the Arbitrator under Section 8 of the Arbitration & Conciliation Act, 1996. This Commission does not have territorial jurisdiction as the jurisdiction has been restricted to Delhi Courts only as per clause 27 of the Buyers Agreement. This Commission also does not have pecuniary jurisdiction to entertain, try and decide this complaint. The project is progressing well but the complainant has not come forward to take the possession and making the balance payment. There is no deficiency in service and adoption of any unfair trade practice on the part of the opposite parties. He prayed that this complaint be dismissed with costs. Consideration of Contentions:

11. We have given our thoughtful consideration to the contentions raised before us by the learned counsel for the parties.

12. So far as the objection of opposite parties that the complainant does not fall under the definition of consumer, as the complainant has purchased the Unit/Flat in question for Consumer Complaint No.711 of 2019 investment/commercial purposes is concerned, it is relevant to mention that there is no evidence from the side of OPs to prove that he is indulged in sale/purchase of property for commercial purpose and simple assertion in this regard in their reply is not sufficient to prove this fact. Honble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already said above, there is no evidence led by OP nos.1 and 2 to prove that the complainant is indulged in sale purchase of properties and that he purchased the Unit/Flat, in question, for further sale or for earning profits. Accordingly, the above said contention of OPs is rejected and the complainant is held to be consumer, under the C.P. Act.

13. So far as the objection of OPs that the matter is to be referred to arbitration under clause 25 of the Agreement, Ex.C-4, is Consumer Complaint No.711 of 2019 concerned, it is relevant to mention that the Larger Bench of the Honble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh Versus EMAAR MGF Land Limited & Anr. held that an Arbitration Clause in the afore-stated kind of 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. Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Honble National Commission was also dismissed by the Honble Apex Court, vide order dated 13.02.2018. The Review Petitions (C) Nos.2629-2630 of 2018 have also been dismissed by the Honble Apex Court on 10.12.2018. Consequently, the existence of an Arbitration Clause is not a bar to resolution of this dispute by this Commission. Accordingly, the said objection of the OPs is hereby rejected.

14. As regards the objection of the OPs that this Commission has no territorial jurisdiction to entertain this complaint is concerned, it is now settled that the territorial jurisdiction of the Fora under the C.P. Act cannot be restricted by inserting such clauses in such Agreements. Admittedly the project is situated in district SAS Nagar Mohali in the State of Punjab and, as such, this Commission has got the territorial jurisdiction to entertain, try and decide this complaint.

15. Now coming to the merits of the case. A perusal of the record reveals that the complainant started paying the instalments Consumer Complaint No.711 of 2019 with effect from 28.05.2012 and had been regularly paying the instalments, vide receipts Ex.C-5 (colly) upto 31.03.2018. The complainant has pleaded that since there was slow progress in the project, he denied to take over the incomplete possession without completion/occupation certificate of the said unit. As per the version of the OPs, the said Agreement is dated 30.06.2014. The complaint was filed on 25.09.2019; however, OP nos.1 and 2 applied for partial completion certificate to GMADA on 17.09.2018, but vide reply dated 03.12.2019, OP no.3 stated that no completion certificate has been issued to said group housing colony of OPs by GMADA. There is no hope of completion of the project in question in near future. The complainant was making the payments of the instalments regularly, but OP nos.1 and 2 failed to fulfill their part of obligation. A perusal of photographs Ex.C-14 (colly) clearly depicts the actual position at the site that the project is not fully developed by OP nos.1 and 2 and due to this reason OP no.3 GMADA has not issued any completion certificate to OP nos.1 and 2. Without completion/occupation certificate, there is no likelihood of completion of the project and delivery of possession of the flat/unit in question, complete in all the respects, even in near future. The complainant cannot be made to wait for perpetuity for delivery of possession of the flat/unit in question. No Completion Certificate and Occupancy Certificate as required under Section 14 of the Punjab Apartment and Property Regulations Act, 1995 (in short, PAPRA) in respect of the flat/unit in question has been placed on record by OP nos.1 and 2. Consumer Complaint No.711 of 2019 Complainant's hard money has been misused by OP nos.1 and 2, as they neither delivered the possession of the flat/unit in question, complete in the respects nor refunded the amount deposited by complainant with them. In these circumstances, we are of the view that OP nos.1 and 2 are deficient in service and have adopted unfair trade practice on their part.

16. As per Section 3 (General Liabilities of Promoter) of the PAPRA, opposite parties were required to make full and true disclosure of the nature of their title to the land, on which such colony is to be developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, opposite parties failed to comply with Section 3 of the PAPRA.

17. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/apartments/flats, but no evidence has been led on the record by opposite parties to prove that any account has been maintained by them in this respect. There is no evidence or pleading on record on behalf of opposite parties in this respect. As such, opposite parties also violated Section 9 of the PAPRA. Consumer Complaint No.711 of 2019

18. Opposite parties had been collecting huge amounts from the buyers for the development of the Project. The amount received from the complainants-buyers was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. They are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the Agreement.

19. The C.P. Act came into being in the year 1986. It is one of the benevolent pieces of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not an iota of evidence led by opposite parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainants have purchased the flat/unit in question with opposite parties with the hope to get the possession of the same in a reasonable time. The circumstances clearly show that opposite parties made false statement of facts about the goods and services

i.e. allotment of land and development thereof in a stipulated period and ultimate delivery of possession. The act and conduct of opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested their money with opposite parties, they would have invested the same elsewhere. There is escalation in the price of construction also. The complainants have suffered Consumer Complaint No.711 of 2019 loss, as discussed above. From the facts and evidence brought on the record of the complaint, it is clearly made out that opposite parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to construct the apartment in question and deliver the possession within the stipulated period, thus by misrepresenting induced the complainants to purchase the flat/unit, due to which the complainants have suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainants is a deposit held by opposite parties in trust of complainants and it should be used for the purpose of developing the project, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainants for failure to deliver the possession, so has been held in catena of judgments by the Honble Supreme Court and the Honble National Commission. In these circumstances, the complainants are held entitled to the refund of the amount deposited by them along with interest, compensation and litigation expenses.

20. As per Rule 17 of the Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of PAPRA, it has been provided as under:-

17. Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest Consumer Complaint No.711 of 2019 thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment.

21. So far as the grievance of complainant with regard to change of flat number is concerned, it is pertinent to mention that apartment buyer's agreement (Ex.C-4) was executed between the parties on 30.06.2014, wherein OP nos.1 and 2 changed apartment no.119 tower-C to apartment no.24 tower-A. This agreement has been duly signed by the complainant without any protest with regard to change of apartment number. Neither, he raised any objection in his email Ex.C-6 dated 10.10.2017 nor at the time of offer of possession of apartment no.24 tower-A in the above project. Moreover, the plea of OP nos.1 and 2 is that the apartment number was changed on the oral request of complainant. In the absence of any evidence on behalf of complainant in this regard, we find force in the plea of OP nos.1 and 2 that above apartment was changed on oral request of complainant and against that, he had not lodged any protest. The agreement was executed in the year 2014 between the parties and complainant has raised this objection/protest only in the year 2019 without producing any cogent evidence in this regard on record. On this point, we find no deficiency in service on the part of OP nos.1 and 2, hence we reject this submission of complainant.

22. To decide the point of enhanced area, raised by complainant, we have perused apartment buyer's agreement (Ex.C-4) dated 30.06.2014. As per clause 1(a) & 1(d) of the agreement, which binding on the parties. Clause 1(a) of the states Consumer Complaint No.711 of 2019 that "the area of the said unit is tentative and is subject to change" and Clause 1(d) states that "xxxx If there shall be an increase in Super Area, the buyer agrees and undertakes to pay for the increase in Super Area immediately on demand, as per intimation received from the Developer." OP nos.1 and 2 informed the complainant vide Ex.C-7 (colly) about the enhanced area. We find no force in this submission of complainant. It is pertinent to mention that once, we hold that complainant is entitled to refund of deposited amount with interest on account of deficiency in service and unfair trade practice on the part of OP nos.1 and 2, as discussed in above paras, hence there is no need to discuss this point in detail.

23. The complainant has prayed for refund of Rs.52,40,098/-, but he himself produced on record Ex.C-5, the ledger account of OPs with regard to deposit of amount of Rs.48,17,373/-. In the absence of any other receipt or account statement, we are of the view that the complainant is entitled to refund of amount of Rs.48,17,373/- only alongwith interest @12% per annum from the date of deposit till actual payment. The complainant is at liberty to recover the balance amount of Rs.4,22,725/- from OP nos.1 and 2 by showing them the receipts/statement and evidence with regard to deposit of the same. OP nos.1 and 2 are directed to refund the same on furnishing the receipt/statement and evidence of Rs.4,22,725/- by the complainant. Consumer Complaint No.711 of 2019

24. In view of our above discussion, this complaint is allowed against OP nos.1 and 2 only and dismissed qua OP no.3, and following directions are issued to OP nos.1 and 2:-

i) to refund the amount of Rs.48,17,373/- along with compensation in the shape of interest at the rate of 12% per annum from the different dates of deposits of different amounts till the date of actual payment; and ii) to pay Rs.50,000/-, as compensation, on account of mental tension and harassment suffered by the complainants including litigation costs.

25. OPs are directed to comply with this order within a period of one month from the date of receipt of a certified copy thereof. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (MRS. KIRAN SIBAL) MEMBER February 07, 2020

Ravinder Goel v. M/s Sandwoods Infratech Projects Pvt. Ltd.

Judgment Summary — Consumer Complaint No.711 of 2019

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Complainant's Arguments

Opposite Parties' Arguments (OP Nos.1 & 2)

Opposite Party No.3 (GMADA) — Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ravinder Goel v. M/s Sandwoods Infratech Projects Pvt. Ltd.

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