Marshal Sharma v. BCL Homes Limited

¹ STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Marshal Sharma S/o Sh. Suresh Sharma, presently residing at Unit 3, 11 Station Street West, Parramatta 2150, New South Wales, Australia, and permanent resident of House No.1108/8 Dukhbhanjan Colony, Thanesar (Kurukshetra), Haryana through his Special Power of Attorney Sh. Suresh Kumar S/o Sh. Ramjwaya, R/o House No.1108/8, Dukhbhanjan Colony, Thanesar

(Kurukshetra), Haryana.

……Complainant V e r s u s

1. BCL Homes Limited through its Director/Additional Director/Authorized Signatory having Registered office at SCO No. 140, Railway Road, Village- Daria, (U.T) Chandigarh. 2. Tejinder Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. 3. Baldev Chand Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. IInd Address:

Baldev Chand Bansal, Director, BCL Homes Limited, Presently confined in Burail Jail, Chandigarh through Superintendent of Jail, Burail Jail,

Chandigarh. 4. Rajeev Kumar, Additional Director, BCL Homes Limited R/o House No. 173, Kamla-Nagar Colony, Bathinda-151001, Punjab. 5. Canara Bank through its Branch Manager, Sector-8, Madhya Marg, Chandigarh

…..Opposite parties

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1. Yashpal Sharma s/o Sh. Jagan Nath Sharma, R/o House No. 269, Mamta Enclave, Dhakoli, Zirakpur, District- SAS Nagar, Mohali (Punjab). 2. Daisy Sharma w/o Sh. Yashpal Sharma R/o House No. 269, Mamta Enclave, Dhakoli, Zirakpur, District- SAS Nagar, Mohali (Punjab).

……Complainants

V e r s u s

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²1. BCL Homes Limited through its Director/Additional Director/Authorized Signatory having Registered office at SCO No. 140, Railway Road, Village- Daria, (U.T) Chandigarh. 2. Tejinder Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. 3. Baldev Chand Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. IInd Address:

Baldev Chand Bansal, Director, BCL Homes Limited, Presently confined in Burail Jail, Chandigarh through Superintendent of Jail, Burail Jail,

Chandigarh. 4. Rajeev Kumar, Additional Director, BCL Homes Limited R/o House No. 173, Kamla-Nagar Colony, Bathinda-151001, Punjab. 5. Canara Bank through its Branch Manager, Sector-8, Madhya Marg, Chandigarh

…..Opposite parties

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1. Annu Sharma w/o Sh. Pawan Kumar Sharma, Department of Chemistry, Kurukshetra University, Kurukshetra (Haryana). 2. Sh. Pawan Kumar Sharma, Department of Chemistry, Kurukshetra University, Kurukshetra (Haryana).

……Complainants V e r s u s

1. BCL Homes Limited through its Director/Additional Director/Authorized

Signatory having Registered office at SCO No. 140, Railway Road, Village- Daria, (U.T) Chandigarh. 2. Tejinder Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. 3. Baldev Chand Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. IInd Address:

Baldev Chand Bansal, Director, BCL Homes Limited, Presently confined in Burail Jail, Chandigarh through Superintendent of Jail, Burail Jail,

Chandigarh. 4. Rajeev Kumar, Additional Director, BCL Homes Limited R/o House No. 173, Kamla-Nagar Colony, Bathinda-151001, Punjab. 5. Canara Bank through its Branch Manager, Sector-8, Madhya Marg, Chandigarh

…..Opposite parties

================================================================

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Dimple Goyal W/o Late Sh. Virender Kumar R/o House No.2017, Sector-7, Kurukshetra (Haryana).

……Complainant V e r s u s

1. BCL Homes Limited through its Director/Additional Director/Authorized Signatory having Registered office at SCO No. 140, Railway Road, Village- Daria, (U.T) Chandigarh. 2. Tejinder Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. 3. Baldev Chand Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. IInd Address:

Baldev Chand Bansal, Director, BCL Homes Limited, Presently confined in Burail Jail, Chandigarh through Superintendent of Jail, Burail Jail,

Chandigarh. 4. Rajeev Kumar, Additional Director, BCL Homes Limited R/o House No. 173, Kamla-Nagar Colony, Bathinda-151001, Punjab. 5. Canara Bank through its Branch Manager, Sector-8, Madhya Marg, Chandigarh

…..Opposite parties

1. Ranish Chandra S/o Sh. Vibhisan Prasad, R/o House No.1458/5, Jyoti Nagar, Kurukshetra-136118 (Haryana). 2. Mrs. Shabnam Sharma W/o Sh. Ranish Chandra, R/o House No.1458/5, Jyoti Nagar, Kurukshetra-136118 (Haryana).

……Complainants

V e r s u s

1. BCL Homes Limited through its Director/Additional Director/Authorized

Signatory having Registered office at SCO No. 140, Railway Road, Village- Daria, (U.T) Chandigarh. 2. Tejinder Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. 3. Baldev Chand Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana.

⁴ IInd Address:

Baldev Chand Bansal, Director, BCL Homes Limited, Presently confined in Burail Jail, Chandigarh through Superintendent of Jail, Burail Jail, Chandigarh. 4. Rajeev Kumar, Additional Director, BCL Homes Limited R/o House No. 173, Kamla-Nagar Colony, Bathinda-151001, Punjab. 5. Canara Bank through its Branch Manager, Sector-8, Madhya Marg, Chandigarh

…..Opposite parties

1. Ajay Mohan S/o Late Sh. Satish Kumar Mohan R/o Flat No.602/13, Daisy Tower, Bollywood Heights, Peer Muchalla-160104, District-Mohali (Punjab).

2. Vandana Mohan W/o Sh. Ajay Mohan R/o Flat No.602/13, Daisy Tower, Bollywood Heights, Peer Muchalla-160104, District-Mohali (Punjab). ……Complainants V e r s u s

1. BCL Homes Limited through its Director/Additional Director/Authorized Signatory having Registered office at SCO No. 140, Railway Road, Village- Daria, (U.T) Chandigarh. 2. Tejinder Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. 3. Baldev Chand Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. IInd Address:

Baldev Chand Bansal, Director, BCL Homes Limited, Presently confined in Burail Jail, Chandigarh through Superintendent of Jail, Burail Jail,

Chandigarh. 4. Rajeev Kumar, Additional Director, BCL Homes Limited R/o House No. 173, Kamla-Nagar Colony, Bathinda-151001, Punjab. 5. Canara Bank through its Branch Manager, Sector-8, Madhya Marg, Chandigarh

…..Opposite parties

1. Priyanka Gupta W/o Sh. Vishal Gupta, R/o House No. 1053, Sector-12-A, Panchkula (Haryana). 2. Veena Gupta w/o Sh. Subhash Gupta, R/o House No. 1053, Sector-12-A, Panchkula (Haryana).

……Complainants

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⁵V e r s u s

1. BCL Homes Limited through its Director/Additional Director/Authorized Signatory having Registered office at SCO No. 140, Railway Road, Village- Daria, (U.T) Chandigarh. 2. Tejinder Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. 3. Baldev Chand Bansal, Director, BCL Homes Limited R/o House No. 253, Sector-7, Panchkula 134109 Haryana. IInd Address:

Baldev Chand Bansal, Director, BCL Homes Limited, Presently confined in Burail Jail, Chandigarh through Superintendent of Jail, Burail Jail,

Chandigarh. 4. Rajeev Kumar, Additional Director, BCL Homes Limited R/o House No. 173, Kamla-Nagar Colony, Bathinda-151001, Punjab. 5. Canara Bank through its Branch Manager, Sector-8, Madhya Marg, Chandigarh

…..Opposite parties

================================================================= Present through video conferencing (in all seven cases): Sh.Ammish Goel, Advocate for the complainant(s). Sh.Paras Money Goyal, Advocate for opposite parties no.1 to 4.

Sh.Pancham Sharma, Advocate for opposite party no.5 (Canara

Bank)

BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS. PADMA PANDEY, MEMBER.

MR.RAJESH K. ARYA, MEMBER.

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

By this order, we propose to dispose of the aforesaid seven consumer complaints. Since, the issues involved in the above complaints, except minor variations, here and there, of law and fact are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order. 2. The aforesaid complaints have been filed by the respective complainants, as they are aggrieved of deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite parties no.1 to 4- BCL Homes Limited (in short the developer) because there has been an inordinate delay in delivering possession of the respective residential units booked by them, in their (opposite parties no.1 to 4) project, for dearth of construction and development activities and the said delay is continuing. They have sought directions to the developer to deliver actual physical possession of their respective units alongwith compensation for delay in delivery of possession; mental agony harassment etc. Details with regard to the project in dispute; units purchased; payments made by the complainants etc. of these complaints are given below:-

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T-13 T-3 T-1 -- T-6 T-11 T-3 Cost 4250000 3750000 3750000 3000000 5030000 4300000 4230000 Amount paid 3400000 3183134 3083046 2466540 1005000 2476110 3477493 Allotment Letter/ 31.08.2011 03.12.11 01.11.11 17.12.11 21.02.15 05.04.12 20.12.11 Agreement dated

Possession date 30.11.2013 02.03.14 31.01.2014 16.03.14 20.05.17 04.07.14 19.03.14 Possession Not offered Not Not offered Not Not Not Not offered offered or not offered offered offered offered Delay in years Above 09 Above 09 Above 9 Above 09 Above 5 Above 9 Above 9 years years years years years years years 3. It has been pleaded that despite the fact that substantial amounts,

as mentioned in the chart above, stood paid to the developer, yet, neither

construction of the units has been completed nor possession thereof has been

delivered by the committed dates or even thereafter. It has been stated that it

has also come to the knowledge of the complainants that opposite party

no.5/Canara Bank has initiated recovery proceedings against the developer,

under SARFASI Act, on account of nonpayment of some dues. It has been

further stated that even the units in question stood mortgaged with opposite

party no.5 by the developer, without the consent of the complainants, which

may cause prejudice to them (complainants). Hence these complaints. 4. The claim of the complainants, in all these seven complaints has

been contested by the developer, on numerous similar grounds, inter alia:-

(i). that all these complaints are barred by limitation;

(ii). that the complainants did not fall within the definition of

"consumer" as they are speculators;

(iii). that the complaint (CC No.101 of 2019) cannot be filed through General Power of Attorney, as he was not aware of the facts and circumstances of the case;

(iv). that this Commission did not vest with territorial jurisdiction to entertain these complaints;

⁷(v). that construction and development work is going on at the project site and possession of the units in question is likely to be delivered by the end of year 2019;

(vi). that possession of the units in question could not be delivered on account of force majeure circumstances i.e. there has been increase in the cost of construction to the extent of 30%.

(vii). that the developer is entitled to extension of reasonable time for delivery of possession of the units to the complainants; (viii). that opposite party no.5-Canara Bank played a fraud with the developer by forging some documents and, on the other hand, the said bank initiated proceeding against the developer under SARFASI Act.

(ix). that the flats/units have not been mortgaged by the developer with opposite party no.5, whereas, on the other hand, only the project land stood mortgaged;

(x). that due to lethargic attitude of opposite party no.5, financial aspect of the developer went under stress;

(xi). that despite the fact that the complainants/other allottees were explained that since the claim of opposite party no.5 as mortgagee of the constructed units is not tenable, as such, their rights would not be effected, even then some allottees had approached Debt Recovery Tribunal-II, Chandigarh against the developer, whereas, on the other hand, they were having the option to get the issue redressed through arbitration. 5. It is significant to mention here that though in the complaints filed, all the complainants have sought possession of their respective units, yet, it has been stated in the written replies filed by the developer, that since the complainants have sought refund of the amount paid, as such, this fact clearly proves that they are investors. Prayer has been made to dismiss these

complaints against the developer. 6. Opposite party no.5 in its written replies, in each case, stated that despite the fact that the project in question was financed by it, yet, it has no relation, whatsoever, with the complainants, in that regard; that since the developer was found to be a chronic defaulter in making payment of the

outstanding dues, as such, proceedings were initiated against it, under

SARFASI Act; and that original application no.252 of 2016 filed by opposite party no.5 against the developer is pending adjudication before the Debt.

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⁸Recovery Tribunal-II, Chandigarh, for recovery of the entire outstanding amount with the sale of mortgaged property. Prayer has been made to dismiss the complaint against opposite party no.5. 7. In the rejoinder filed, the complainants reiterated all the averments contained in their respective complaints and have controverted those contained in written replies filed by the opposite parties. 8. The parties led evidence in support of their cases. 9. We have heard the contesting parties and have gone through record of these cases, including the rejoinders and written arguments filed by the

parties concerned, very carefully. 10. First coming to the objection regarding territorial jurisdiction, it

may be stated here that it is settled law that even an infinitesimal fraction of a

cause of action will be part of the cause of action and confer jurisdiction on the

Court/Tribunal/Fora within the territorial limits of which that occurs. In the

instant cases, record reveals that number of letters/documents/payment

receipts have been issued by the developer from its Registered Office located at

Shop No.140, Railway Road, Village Dariya, U.T., Chandigarh, meaning thereby

that the Company was actually and voluntarily residing and carrying on

business from its Office at Chandigarh and personally work for gain thereat.

Thus, this Commission at Chandigarh has territorial jurisdiction to entertain

these complaints. Objection taken by the developer in this regard stands

rejected. 11. Now coming to the objection taken to the effect that the

complainants did not fall within the definition of 'consumer', it may be stated

here that the objection raised is not supported by any documentary evidence

and as such the onus shifts to the developer to establish that the complainants,

in these complaints have purchased the respective units to indulge in 'purchase

and sale of units/flats' as was held by the Hon'ble National Commission

in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since it failed to discharge

its onus, hence we hold that the complainants are consumers as defined under

the Act. In this view of the matter, objection taken by the developer in this

regard stands rejected. 12. The next question that falls for consideration is, as to whether, in

the face of existence of Arbitration clause in the allotment letters/agreements

aforesaid, jurisdiction of this Commission is barred? It may be stated here that

this issue has already been set at rest by the larger Bench of the Hon'ble

National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land

Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated

13.07.2017, it has been held that an Arbitration Clause in the Agreements

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⁹between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon'ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, plea taken by Counsel for the developer, in this regard, stands rejected. 13. There is no dispute with regard to purchase of respective units by the complainants in the project of the developer, as per the details mentioned in the chart above. It is also an admitted fact that despite the fact that in all these complaints, substantial amounts, referred to above, stood received by the developer, yet, possession of the respective units has not been offered and delivered till date, to the complainants. In para no.14 of the reply on merits (CC No.101 of 2019 and also the remaining complaints), the developer has stated that it is taking effective steps for completing the project. However, except this bald assertion, no other cogent and convincing evidence has been placed on record, to prove that the construction and development works at the project site is at the advance stage and that basic amenities such as roads, electricity, sewerage etc. are near completion. Burden to prove that the project has been completed and the area/site, in question, is fully developed or is about to complete, is on the developer. It was so said by the Hon'ble National

Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander

Chandna, First Appeal No.873 of 2013 decided on 29.09.2014.

However, it has been vaguely stated by the developer in the written

replies that construction and development work is going on at the project site and possession of the units in question is likely to be delivered by the end of year 2019, which was not so done by the developer and the said period has also already expired. Thus, it can easily be said that the developer was not serious in completing the project wherein the units in question were sold to the

complainants and is now taking bald excuses for causing delay, just with a view to defeat the claim of the complainants. Under these circumstances, it is held that the developer by neither completing the construction and development work even by the date when these complaints were filed; nor delivering possession of the respective units to the complainants, and furthermore, causing a huge delay in offering possession which is still continuing; indulged into unfair trade practice and is also negligent and deficient in providing service to the complainants. 14. At the same time, it is also held that plea taken by the developer to the effect that delay took place in offering possession because opposite party

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¹⁰no.5-Canara Bank played a fraud with it by forging some documents, which resulted into initiation of action against it (developer) under SARFASI Act; and that some allottees had approached DRT-II, Chandigarh against it and as such, it amounts to force majeure circumstances; it may be stated here that the said plea has no legs to stand, for the reasons to be recorded hereinafter. It may be stated here that it has not been clarified by the developer, as to what relation, the complainants had with the Canara Bank, once they have paid the substantial amounts, referred to above, directly to the developer, from their own pockets, may be from their own sources or by raising housing loans from some other bank. The allottees including the complainants cannot be made to suffer, if the developer has allegedly defaulted in making payment of some dues against the loan raised by it from opposite party no.5-Bank. Furthermore, deficiency in providing service and adoption of unfair trade practice is writ large, as the developer in the present case has mortgaged the project land, on which the units in question are also located, without taking any consent from the complainants and other allottees. Not even a single document has been placed on record by the developer to prove before this Commission that the fact with regard to mortgaging the project land had been brought to the notice of the complainants at the time of selling them the respective units. Furthermore, if some allottees have allegedly approached DRT-II, Chandigarh, for recovery of their amount, then the complainants who are seeking possession of their respective units have no concern with it. It is an admitted fact that the entire project site and the construction raised thereon is mortgaged with Canara Bank/opposite party no.5 and dispute has been raised by the financial institutions in various courts including Debt Recovery Tribunal. In our considered opinion, the default of payments by the developer to Canara Bank cannot, viewed from any angle, be construed as 'Force Majeure' circumstances. Our this view is supported by the observations made by the Hon'ble National Commission in respect of the same very project in BCL Homes Ltd. & 2 Ors. Vs. Sudesh Mudgil & Anr. , First Appeal No. 182 of 2017, decided on 30 April, 2019. Relevant part of the said order is reproduced hereunder:-

"….14. It is an admitted fact that the entire project site and the construction raised thereon is mortgaged with Canara Bank and a dispute has been raised by the financial institutions in various courts including Debt Recovery Tribunal. The default of payments by the Developer to Canara Bank cannot, viewed from any angle, be construed as 'Force Majeure' conditions…." In this view of the matter, plea taken by the developer in this regard has no significant value in the eyes of law and is accordingly rejected.

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¹¹15. Furthermore, the developer also cannot wriggle out of its liability, by saying that delay took place on account of the reason that some allottees defaulted in making remaining payment towards their respective units, especially, when the developer itself has taken a plea that delay took place because of the dispute between it and opposite party no.5-Bank, which resulted into initiation of proceedings under SARFASI Act. Thus, under these circumstances, if some of the allottees including the complainants, after making payment of substantial amounts, referred to above, did not make remaining payment when they came to know that there was no development and construction activities at the project site and that opposite party no.5 has initiated proceedings against the developer under SARFASI Act, they were right in doing so. Our this view is supported by the principle of law laid down by the Hon'ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date or within a reasonable period where no agreement is executed, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon'ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. As such, plea taken by the developer in this regard stands rejected. 16. Be that as it may, since the developer in its written replies has fairly stated that it is still taking effective steps to complete the project in question, as such, under those circumstance, we are of the considered opinion that if we order the developer to deliver possession of the respective units to the complainants, alongwith payment of compensation for the period of delay, it shall meet the ends of justice. Thus, now the question that falls for consideration is, as to what amount of compensation, the complainants are entitled to get, for the period of delay in offering possession of their respective units in question. It may be stated here that this issue has been set at rest by the Hon'ble Supreme Court of India in Civil Appeal No.6239 of 2019 (Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Pvt. Ltd. (now Known as BEGUR OMR Homes Pvt. Ltd. and Ors.) decided on

24.08.2020, wherein, while discarding the one-sided terms of the Buyer's Agreements, simple interest @ 6% per annum on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the

agreement for delay in delivery of possession till delivery of actual and physical

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¹²possession of the unit has been awarded. Relevant part of the said order is reproduced hereunder:-

"…..Allowing the appeals in part, we set aside the impugned judgment and order of the NCDRC dated 2 July 2019 dismissing the consumer complaint. While doing so, we issue the following directions:

(i) Save and except for eleven appellants who entered into specific settlements with the developer and three appellants who have sold their right, title and interest under the ABA, the first and second respondents shall, as a measure of compensation, pay an amount calculated at the rate of 6 per cent simple interest per annum to each of the appellants. The amount shall be computed on the total amounts paid towards the purchase of the respective flats with effect from the date of expiry of thirty-six months from the execution of the respective ABAs until the date of the offer of possession after the receipt of the occupation certificate;

(ii) The above amount shall be in addition to the amounts which have been paid over or credited by the developer at the rate of Rs 5 per square foot per month at the time of the drawing of final accounts; and

(iii) The amounts due and payable in terms of directions (i) and (ii) above shall be paid over within a period of one month from the date of this judgment failing which they shall carry interest at the rate of 9 per cent per annum until payment……." Furthermore, in Lucknow Development Authority v. M.K Gupta . (1994) 1 SCC 243, the Hon'ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Bharathi Knitting Company Vs.DHL Worldwide Express Courier Division of Airfreight Ltd.- (1996)

4 SCC 704, the Hon'ble Supreme Court accepted the contention that in an appropriate case, the Consumer Forum without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant relief, though, each case depends upon its own facts. In view of the observations of the Hon'ble Supreme Court in the above noted cases, we are of the view that the provision of penalty @ Rs.10,000/- per month, as per Clause 9 of the respective allotment letters/ agreements, which comes to a very meager amount i.e. around 3% per annum, is not sufficient to compensate the complainants for the delay in delivery of possession and the mental agony, harassment and financial loss suffered by them on account of delay. There is nothing on record which could prove that the amounts due to be paid by the complainants, in their respective complaints, was the main cause for the delay in the completion of the project. Rather, the delay has been attributed to opposite party no.5-Bank, which infact has no

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¹³relation whatsoever, as far as the present cases of the complainants are concerned. Therefore, in addition to aforesaid penalty @ Rs.10,000/- per month, referred to above, after the expiry of stipulated date of delivery of possession, the complainants are also entitled to simple interest @ 6% per annum on the entire amount deposited by them from the due dates of possession till the date when possession will be delivered to them. 17. As far as objection taken in CC No.101 of 2019 to the effect that the said complaint is not maintainable as it has been filed through GPA, it may be

stated here that vide the said general power of attorney, the complainant has

appointed his father Sh.Suresh Kumar, as his lawful attorney on his behalf to

look after the affairs in respect of the unit in question, as he (complainant) was

going abroad. It is significant to mention here that the Consumer Protection Act,

is a beneficial legislation, to provide speedy, inexpensive and hassle free

redressal to the grievance of the consumers. The provisions of the Code of Civil

Procedure, except the one, provided under Section 13(4) of the Act, and the

Evidence Act are not applicable to the consumer disputes. The Consumer Foras

are to evolve their own procedure for adjudicating the consumer disputes, by

resorting to the principles of natural justice but are not required to enter into

technicalities, with a view to deny the substantial justice to the parties. It was

also so said by the Hon'ble Supreme Court of India, in the case of V. KishanRao

Vs, Nikhil Super Speciality Hospital and another, CIVIL APPEAL NO.2641_ OF

2010, (Arising out of SLP(C) No.15084/2009), decided on March 8, 2010.

Relevants contents of the said order reads thus:-

"The Forum overruled the objection, and in our view rightly, that

complaints before consumer are tried summarily and Evidence Act in terms does not apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in (2009) 9 SCC 221 that provisions of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice"

In the present case also, since the relief, if any, will be granted in favour of the complainant only and not in the name of his power of attorney holder, as such, no prejudice will be caused to the developer in that regard, as far as the power of attorney in question is concerned. In this view of the matter, objection taken by the developer in this regard stands rejected. 18. Now we will deal with the objection taken to the effect that the complaints filed are beyond limitation, it may be stated here that since it is an

admitted fact that possession of the respective units in question has not been

delivered by the committed dates or even by the dates when these complaints

have been filed before this Commission, for dearth of development and

construction activities, as explained above, as such, objection taken with regard

to limitation is not sustainable in view of principle of law laid down in Lata

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¹⁴Construction & 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), wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer. As such, objection taken by the developer in this regard is rejected. 19. For the reasons recorded above, all these complaints are partly accepted with costs, in the following manner:-

In CC No.101 of 2019, opposite parties no.1 to 4, jointly and severally, are directed as under:-

a. To deliver actual physical possession of the unit in question,

complete in all respects after obtaining occupation and completion

certificates from the competent authorities to the complainant(s),

within a period of 3 months from the date of receipt of a certified

copy of this order, on receipt of balance sale consideration and also

govt. taxes as applicable, from the complainants.

b. To pay compensation @ Rs.10,000/- per month as per Clause 9

contained in the allotment letter/agreement and also interest @6%

p.a. on the entire amount deposited by the complainant(s), for delay

in delivery of possession of the unit in question, starting from the

promised date i.e. from 30.11.2013 till 30.04.2022, within a period

of 30 days from the date of receipt of a certified copy of this order,

failing which the entire accumulated amount shall carry penal

interest @9% p.a. from the date of default till this payment is made.

c. To pay compensation @ Rs.10,000/- per month as per Clause 9

contained in the allotment letter/agreement and also interest @6%

p.a. on the amount deposited by the complainant(s),

from 01.05.2022, onwards (per month), by the 10^th of the following

month to the complainant(s) till actual delivery of physical

possession of the unit, in question, complete in all respects.

d. To pay Rs.35,000/- as cost of litigation, within a period of 30 days,

from the date of receipt of a certified copy of this order, failing

which, the said amount of Rs.35,000/-, shall carry interest @9%

p.a. from the date of passing of this order, till realization.

In CC No.102 of 2019, opposite parties no.1 to 4, jointly and severally, are directed as under:-

14

¹⁵a. To deliver actual physical possession of the unit in question, complete in all respects after obtaining occupation and completion certificates from the competent authorities to the complainant(s), within a period of 3 months from the date of receipt of a certified copy of this order, on receipt of balance sale consideration and also govt. taxes as applicable, from the complainants.

b. To pay compensation @ Rs.10,000/- per month as per Clause 9 contained in the allotment letter/agreement and also interest @6% p.a. on the entire amount deposited by the complainant(s), for delay in delivery of possession of the unit in question, starting from the promised date i.e. from 02.03.2014 till 30.04.2022, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry penal interest @9% p.a. from the date of default till this payment is made. c. To pay compensation @ Rs.10,000/- per month as per Clause 9 contained in the allotment letter/agreement and also interest @6% p.a. on the amount deposited by the complainant(s), from 01.05.2022, onwards (per month), by the 10^th of the following month to the complainant(s) till actual delivery of physical possession of the unit, in question, complete in all respects.

d. To pay Rs.35,000/- as cost of litigation, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.35,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

In CC No.114 of 2019, opposite parties no.1 to 4, jointly and severally, are directed as under:-

a. To deliver actual physical possession of the unit in question, complete in all respects after obtaining occupation and completion certificates from the competent authorities to the complainant(s), within a period of 3 months from the date of receipt of a certified copy of this order, on receipt of balance sale consideration and also govt. taxes as applicable, from the complainants.

b. To pay compensation @ Rs.10,000/- per month as per Clause 9 contained in the allotment letter/agreement and also interest @6% p.a. on the entire amount deposited by the complainant(s), for delay in delivery of possession of the unit in question, starting from the promised date i.e. from 31.01.2014 till 30.04.2022, within a period of 30 days from the date of receipt of a certified copy of this order, failing

15

¹⁶which the entire accumulated amount shall carry penal interest @9% p.a. from the date of default till this payment is made. c. To pay compensation @ Rs.10,000/- per month as per Clause 9 contained in the allotment letter/agreement and also interest @6% p.a. on the amount deposited by the complainant(s), from 01.05.2022, onwards (per month), by the 10^th of the following month to the complainant(s) till actual delivery of physical possession of the unit, in question, complete in all respects.

d. To pay Rs.35,000/- as cost of litigation, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.35,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

In CC No.116 of 2019, opposite parties no.1 to 4, jointly and severally, are directed as under:-

a. To deliver actual physical possession of the unit in question, complete in all respects after obtaining occupation and completion certificates from the competent authorities to the complainant(s), within a period of 3 months from the date of receipt of a certified copy of this order, on receipt of balance sale consideration and also govt. taxes as applicable, from the complainants.

b. To pay compensation @ Rs.10,000/- per month as per Clause 9 contained in the allotment letter/agreement and also interest @6% p.a. on the entire amount deposited by the complainant(s), for delay in delivery of possession of the unit in question, starting from the promised date i.e. from 16.03.2014 till 30.04.2022, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry penal interest @9% p.a. from the date of default till this payment is made. c. To pay compensation @ Rs.10,000/- per month as per Clause 9 contained in the allotment letter/agreement and also interest @6% p.a. on the amount deposited by the complainant(s), from 01.05.2022, onwards (per month), by the 10^th of the following month to the complainant(s) till actual delivery of physical possession of the unit, in question, complete in all respects.

d. To pay Rs.35,000/- as cost of litigation, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.35,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

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¹⁷ In CC No.117 of 2019, opposite parties no.1 to 4, jointly and severally, are directed as under:-

a. To deliver actual physical possession of the unit in question, complete in all respects after obtaining occupation and completion certificates from the competent authorities to the complainant(s), within a period of 3 months from the date of receipt of a certified copy of this order, on receipt of balance sale consideration and also govt. taxes as applicable, from the complainants.

b. To pay compensation @ Rs.10,000/- per month as per Clause 9 contained in the allotment letter/agreement and also interest @6% p.a. on the entire amount deposited by the complainant(s), for delay in delivery of possession of the unit in question, starting from the promised date i.e. from 20.05.2017 till 30.04.2022, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry penal interest @9% p.a. from the date of default till this payment is made. c. To pay compensation @ Rs.10,000/- per month as per Clause 9 contained in the allotment letter/agreement and also interest @6% p.a. on the amount deposited by the complainant(s), from 01.05.2022, onwards (per month), by the 10^th of the following month to the complainant(s) till actual delivery of physical possession of the unit, in question, complete in all respects.

d. To pay Rs.35,000/-, as cost of litigation, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.35,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

In CC No.118 of 2019, opposite parties no.1 to 4, jointly and severally, are directed as under:-

a. To deliver actual physical possession of the unit in question, complete in all respects after obtaining occupation and completion certificates from the competent authorities to the complainant(s), within a period of 3 months from the date of receipt of a certified copy of this order, on receipt of balance sale consideration and also govt. taxes as applicable, from the complainants.

b. To pay compensation @ Rs.10,000/- per month as per Clause 9 contained in the allotment letter/agreement and also interest @6% p.a. on the entire amount deposited by the complainant(s), for delay in

17

¹⁸delivery of possession of the unit in question, starting from the promised date i.e. from 04.07.2014 till 30.04.2022, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry penal interest @9% p.a. from the date of default till this payment is made. c. To pay compensation @ Rs.10,000/- per month as per Clause 9 contained in the allotment letter/agreement and also interest @6% p.a. on the amount deposited by the complainant(s), from 01.05.2022, onwards (per month), by the 10^th of the following month to the complainant(s) till actual delivery of physical possession of the unit, in question, complete in all respects.

d. To pay Rs.35,000/- as cost of litigation, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.35,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

In CC No.122 of 2019, opposite parties no.1 to 4, jointly and severally, are directed as under:-

a. To deliver actual physical possession of the unit in question, complete in all respects after obtaining occupation and completion certificates from the competent authorities to the complainant(s), within a period of 3 months from the date of receipt of a certified copy of this order, on receipt of balance sale consideration and also govt. taxes as applicable, from the complainants.

b. To pay compensation @ Rs.10,000/- per month as per Clause 9 contained in the allotment letter/agreement and also interest @6% p.a. on the entire amount deposited by the complainant(s), for delay in delivery of possession of the unit in question, starting from the promised date i.e. from 19.03.2014 till 30.04.2022, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry penal interest @9% p.a. from the date of default till this payment is made. c. To pay compensation @ Rs.10,000/- per month as per Clause 9

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¹⁹d. To pay Rs.35,000/- as cost of litigation, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.35,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

20. Complaint against opposite party no.5 in each case is dismissed with no order as to cost. 21. Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case files. 22. The files be consigned to Record Room, after completion. Pronounced.

08.04.2022_

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

Sd/-

(PADMA PANDEY)

MEMBER

Sd/-

(RAJESH K. ARYA)

MEMBER

Rg.

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