State Consumer Disputes Redressal Commission
Jagbir Kaur Brar vs M/S Puma Realtors Pvt. Ltd. on 13 February, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Complaint Case No. 143 of 2017 Date of Institution 15.02.2017 Date of Decision 13.02.2018 Jagbir Kaur Brar w/o Late Sh. Surjit Singh Brar r/o House No.609, Sector 16, Chandigarh currently residing in 10160, Atlantis Drive, ELK Grove, California - 95624. .....Complainant. Versus M/s Puma Realtors Pvt. Ltd., SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh. .....Opposite Party. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:Sh. Savinder Singh Gill, Advocate for the complainant.
Sh. Rohit Tanwar, AGM (Legal) of the Opposite Party.
PER DEV RAJ, MEMBER The facts in brief are that as the complainant was willing to own a residential plot for her family and personal use, she applied for a plot in the project of the Opposite Party, namely, "IREO Hamlet", Sector 98, SAS Nagar, Mohali. Plot No.329 measuring 201.36 sq. yds. was allotted to her on 29.04.2011 vide provisional allotment letter (Annexure C-1). Plot Buyer's Agreement was also executed between the parties on 19.07.2011 at Chandigarh. As per Clause 11 of the Agreement, possession of the plot, in question, was to be delivered within 24 months plus 6 months grace period from the date of execution of the same. It was further stated that the Opposite Party was additionally entitled for another 12 months extended grace period as per Clause 11.3 of the Agreement. It was further stated that Time Linked Payment plan, opted by the complainant, was changed to Development Linked Payment Plan vide letter dated 26.09.2011 (Annexure C-4). It was further stated that the complainant, in all, paid an amount of Rs.47,26,947/- to the Opposite Party uptil 29.01.2014 vide receipts (Annexure C-3 colly.). It was further stated that on visiting the site, the complainant was shocked to see that there was no development and even the roads diving Sectors 86-87 and approach road to reach the site were not there. It was further stated that the complainant again visited the site in 2013 and found that still there was no development at the site. It was further stated that necessary permissions/approvals with regard to public health and electricity services had not been obtained by the Opposite Party from the competent authorities. It was further stated that there is no boundary wall or any sector road connecting to the project, no overhead tanks and water linkages to the project, no club house building, green belt is yet to be developed and there is no proper arrangement of water supply, sewerage, electricity etc., as per information obtained under Right to Information Act (Annexures C-5 to C-9). It was further stated that the Opposite Party has not obtained the completion certificate till date as per RTI information (Annexure C-12). It was further stated that the complainant requested the Opposite Party to refund the deposited amount vie letters dated 03.05.2016 and 30.05.2016 (Annexures C-14 & C-15), but the Opposite Party failed to refund the amount. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.
2. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Party, to refund Rs.47,26,947/- alongwith interest @18% from the actual dates of deposits; pay compensation to the tune of Rs.5,00,000/- on account of mental agony and cost of litigation to the tune of Rs.1,00,000/-.
3. The Opposite Party, in its written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration clause No.33 in the Plot Buyer's Agreement dated 19.07.2011; that present complaint related to the enforcement of agreement to sell/purchase of a residential plot i.e. an immoveable property and hence was not covered under the Act; that the complainant did not hire any services of the Opposite Party, as the parties did not enter into any contract for hiring the services; that the complainant did not book the plot for her personal use but for investment/commercial purpose and that the allegations in the complaint being of contractual nature, were only triable by the Civil Court. It was further pleaded that jurisdiction issues be decided as preliminary issues and only thereafter, decision be taken on merits. Apart from above objections, a specific objection with regard to the territorial jurisdiction of the Commission on account of existence of Clause 35 in the Agreement has been raised stating that the Courts at Mohali and the Punjab & Haryana High Court at Chandigarh alone have the jurisdiction.
4. On merits, it was stated that the total sale consideration price of the plot was Rs.49,58,510/-. It was further stated that conjoint reading of clauses 11.1 to 11.3 of the Agreement revealed that in the event, the Opposite Party do not offer possession in 30 months, then the complainant as per clause 11.2, agreed to accept the liquidated damages of Rs.50/- per sq. yd. for every month till possession is actually offered. It was stated that vide Clause 11.1 of the Agreement, it was agreed that the complainant shall punctually pay the due installments in time and further, if the Opposite Party failed to offer possession on expiry of grace period (30 months), the Opposite Party shall be liable to pay compensation @50/- per sq. yard per month till actual date fixed for handing over of possession. It was further stated that development at the site commenced w.e.f. 01.05.2013 and was carried out continuously till 30.04.2015. It was further stated that the Opposite Party started issuing offer of possession to its allottees w.e.f. 04.05.2015 and number of allottees have already taken possession. It was further stated that the complainant was offered possession of Plot No.199 as well as alternate fully developed plot in lieu of the plot, in question, but she refused to accept the same. It was further stated that even the report of Local Commissioner filed in complaint titled 'Abha Arora Vs. PUMA Realtors Pvt. Ltd. and another', bearing No.170 of 2015, clearly unveils the false allegations made by the complainant. It was further stated that no refund can be made with 18% interest as the complainant had already demanded interest @9% p.a. on the refund amount vide letter (Annexure C-14).
5. It was further stated that PSPCL granted its approval and approved the electricity load to Ireo Hamlet Project vide letter dated 08.07.2015. It was further stated that the Chief Electrical Inspector to Govt. of Punjab approved the electrical installations laid in the project for commission of the same vide its NOC dated 07.08.2015. It was further stated that it is only matter of some time that the said sector roads will be in existence as the GMADA has already commenced construction of the said sector roads and the Opposite Party will connect its internal roads with these sector roads. It was further stated that the complete system of sewage, drainage and storm lines are in existence and STP has also been installed. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
6. In the rejoinder filed, the complainant reiterated all the averments, contained in the complaint and controverted those, contained in written version of the Opposite Party.
7. The parties led evidence, in support of their cases.
8. We have heard the Counsel for the parties, and, have gone through the evidence and record of the cases, carefully.
9. It is evident, on record, that vide provisional allotment letter dated 29/30.04.2011 (Annexure C-1), the complainant was allotted a Plot bearing no.329, in the residential project "IREO Hamlet" admeasuring 201.36 sq. yard, Sector 98, SAS Nagar, Mohali, the basic sale price whereof was Rs.23,000/- per sq. yard besides External Development Charges (EDC) @Rs.1,275.10 per sq. yard and IFMS charges @Rs.350/- per sq. yard. Admittedly, Plot Buyer's Agreement was executed between the complainant and the Opposite Party on 19.07.2011 (Annexure C-2) at Chandigarh. The payment against the aforesaid plot was to be regulated as per payment plan, Annexure-I (at Page 51 of the file). Against the total price of the plot including External Development Charges, IFMS Charges, admittedly, the complainant made payment in the sum of Rs.47,26,947.08 as against the total sale consideration of Rs.49,58,510.14 of the plot, in question, and only an amount of Rs.3,23,568.01 remains due to be paid by the complainant, as is evident from Statement of Account (Annexure OP-13). As admitted by the Opposite Party, the development work started at the site on 01.05.2013 i.e. almost twenty two months after the execution of Plot Buyer's Agreement dated 19.07.2011. Admittedly, possession of the plot, in question, has not been offered/delivered to the complainant till date. The averment of the Opposite Party that the complainant was offered possession of Plot No.199 as well as alternate fully developed plot in lieu of plot, in question, but the complainant refused to accept the same for obvious reasons, is without any cogent evidence. Had the Opposite Party actually offered possession of the alternate plot, it would have placed, on record, some documentary evidence to corroborate its stand. On the other hand, the complainant in her rejoinder has specifically termed the averment of the Opposite Party to this effect as wrong.
10. The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this Commission in case titled ' Sarbjit Singh Vs. Puma Realtors Private Limited', IV (2016) CPJ 126, noted that litigation in the Consumer Fora is cost effective. The complaint in the State Commission can be filed by making payment between Rs.2,000/- to Rs.4,000/- only. Whereas, as per principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of arbitrator's fee. As per mandate of 1986 Act, a complaint is proposed to be decided within three months from the date of service of the other party. On the other hand, it is admissible to an Arbitrator to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take up-to one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it was observed that if the matter is referred to an Arbitrator, it would defeat the very purpose of the provisions of 1986 Act. Paras 26, 33 and 34 of the said order, inter-alia, being relevant, are extracted hereunder:-
"26. To decide above said question, it is necessary to reproduce the provisions of Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;
"3. Act not in derogation of any other law.--
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
33. The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the plot, in question, in a developed project. As per ratio of the judgments in the case of 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 another Vs. HiraLal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.
34. Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj &anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-
"In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon'ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy &Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986."
In view of the above, the plea taken by the Opposite Party, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.
11. The next question that falls for consideration, is, as to whether, the plot, in question, was purchased by the complainant, for her personal use, or she was speculator, as alleged by the opposite party. No doubt, to defeat claim of the complainant, an objection was raised by the opposite party, to the effect that the complainant, being an investor, had purchased the plot, in question, for earning profits, as and when there was escalation in the prices of real estate, as such, she would not fall within the definition of consumer, as defined under Section 2(1)(d) of 1986 Act. It has also been stated by the Opposite Party that the complainant purchased five plots, out of which, she sold three plots in the year 2011. It may be stated here that there is nothing, on the record to show, that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. It has been clearly averred by the complainant, in para no.1 of her complaint that the plot, in question, was purchased by her exclusively for residential purpose of her two daughters. The complainant has also specifically stated in her rejoinder that plots were purchased by her for her daughters and grand children but due to paucity of funds, she was not able to continue with three of plots. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Commission 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. The principle of law, laid down, in Kavita Ahuja's case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only as above, recently under similar circumstances, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-
" In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015."
The complainant, thus, falls within the definition of 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.
12. The next question, that falls for consideration, is, as to whether, there is a contract to sell a plot only and no service was to be provided as alleged, by the Opposite Party, to her (complainant) and, as such, she would not fall within the definition of 'consumer'. It may be stated here that the stand taken by the Opposite Party, needs rejection, in view of Haryana State Agricultural Marketing Board vs. BishamberDayalGoyal and Ors., Civil Appeal No.3122 of 2006, decided on 26.03.2014 (AIR 2014 S.C. 1766), wherein the Hon'ble Supreme Court, while placing reliance on Municipal Corporation, Chandigarh &Ors. vs. Shantikunj Investment (P) Ltd. &Ors., (2006) 4 SCC 109, held that though it was not a condition precedent but there is an obligation on the part of the Administration to provide necessary facilities such as roads, drainage, drinking water, sewerage, street lighting etc. etc., for full enjoyment of the same by allottees. Thus, since, it was bounden duty of the Opposite Party to provide basic facilities and infrastructure to make the plot habitable, as such, it cannot be said that only a plot was to be delivered to the complainant, without any amenities/facilities. Under similar circumstance, in Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), the National Commission, held as under:-
"In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the appellant-company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/ amenities, lay-out approvals etc. was a 'service' within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute. Having regard to the nature of the transaction between the appellant-company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted 'service' within the meaning of the Act. It was not a case where the appellant-company was selling the given property with all 7 Page 8 advantages and/or disadvantages on "as is where is" basis, as was the position in U.T. Chandigarh Administration and Anr. v. Amarjeet Singh and Ors. (2009) 4 SCC 660. It is a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents".
In view of above facts, the plea taken by the Opposite Party, in this regard, stands rejected.
13. Another objection raised by the Opposite Party was that since the complainant sought enforcement of the Agreement, only a Civil Court has the jurisdiction, and as such, consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the Opposite Party, for purchasing the plot, in question, in the manner, referred to above. According to Clauses11.1 and 11.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Party, it was to hand over possession of the plot, in question, within a period of 42 months i.e. (24 months + 6 months grace period + 12 months extended delay period), from the date of execution of the same (Agreement). Section 2 (1) (o) of 1986 Act, defines 'service' as under:-
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"
From the afore-extracted Section 2(1)(o) of 1986 Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. etc.'s case (supra), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of 1986 Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors.'s case (supra). Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of 1986 Act, can be availed of by her, as she falls within the definition of a consumer, as stated above. In this view of the matter, the objection of the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.
14. The next objection raised by the Opposite Party is that existence of Clause 35 in the Buyers Agreement, bars the territorial jurisdiction of this Commission, to entertain and try the complaint. It may be stated here that according to Section 17 of the Act, a consumer complaint could be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case, it is evident, that provisional allotment letter dated 29.04.2011 (Annexure C-1), receipts (Annexure C-3 colly), and letter dated 26.09.2011 (Annexure C-4) were issued from the Chandigarh address of the Opposite Parties i.e. SCO Nos.6-8, First and Second Floor, Sector 9-D, Madhya Marg, Chandigarh. Thus, since a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. A similar question arose, before the National Commission, in Smt. Shanti Vs. M/s. Ansal Housing & Construction Ltd., First Appeal No.142 of 2001 decided by the National Commission on 11.04.2002, wherein the National Commission held as under:-
"This appeal is directed against the order dated 9.4.2001 of the Delhi Consumer Disputes Redressal Commission non suiting the appellant on a preliminary issue holding that Delhi State Consumer Dispute Redressal Commission will have no jurisdiction to entertain the complaint.
What led the State Commission to pass this order was clause 24 of the agreement for allotment of residential flat to the appellant. It is stated that 'any dispute arising out of this agreement shall be subject to jurisdiction of Lucknow Courts only". State Commission also relied on the decision of the Supreme Court in the case of A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A.P. Agencies, Salem - AIR 1989 SC 1239 to hold that only the courts in Lucknow would have jurisdiction.
We do not think State Commission examined the whole issue in a pragmatic manner. Complainant is a consumer and raised a consumer dispute under the Consumer protection Act, 1986. To help and assist a consumer and to achieve the objects of the Act, Section 11 of the Act was amended. This Section relates to the jurisdiction of the District Forum. Now a complaint could be filed against the opposite party not only at the place where he actually or voluntarily reside or personally works for gain but also where he carries on business or has branch office. The words "carries on business or has a branch office" were added by the amending Act of 1993. Jurisdiction of a District Forum is exclusively covered by Section 11 of the Act. For this we do not have to refer any provisions of the Code of Civil Procedure. Any provision of the agreement which oust the jurisdiction of a District Forum even from a place where the opposite party has a branch office cannot be held to be valid or binding. Moreover, the clause on which the complainant was non-suited refers to the jurisdiction of Lucknow Courts. District Forum is not a court as understood in the Code of Civil Procedure. That clause in the agreement will have no meaning as far as jurisdiction of the District Forum where the opposite party has even branch office is concerned.
National Commission has already taken a view on this aspect of the matter. Accordingly the impugned order of the State Commission is set aside and the matter is remanded to the State Commission to decide the complaint in accordance with law. Party shall appear before the State Commission on 8.7.2002 for further directions. This appeal is disposed of as above."
It may be stated here that, for determining the territorial jurisdiction, to entertain and decide the complaint, the Consumer Foras are bound by the provisions of Section 11 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors.-I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of jurisdiction, by way of an agreement, between the parties, could not be made applicable, to the consumer complaints, filed before the Consumer Foras, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. Further, in Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)=VII (2011) SLT 371, the principle of law, laid down was that the restriction of jurisdiction to a particular Court, need not be given any importance in the circumstances of the case. In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D. Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the jurisdiction of the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the jurisdiction of a particular Court/Forum, and limiting the jurisdiction of a particular Court/Forum, could not be given any importance and the complaint could be filed, at a place, where a part of cause of action arose, according to Section 11 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case. At the same time, it is also held in the face of case Ethiopian Airlines Vs Ganesh Narain Saboo's (supra),decided by the Supreme Court of India, the judgment titled as M/s Taneja Developers and Infrastructure Limited Vs. Gurpreet Singh and another, First Appeal No.33 of 2014, decided on 25.02.2016, by the National Commission, reliance whereupon has been placed by Counsel for the opposite party, to support his contention, that this Commission has no territorial jurisdiction, shall not hold the field. In these circumstances, such a Clause contained in the Agreement, therefore, could not exclude the jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainant, to file the complaint. The objection taken by the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.
15. The next question, which falls for consideration, is, as to whether there is delay in offering/delivering possession of the plot, in question, and whether on that account, the complainant is entitled to refund of the deposited amount. It may be stated here that Plot Buyer's Agreement was entered into between the parties on 19.07.2011. As per Clause 11.1 of General Clauses of the Agreement, possession of the plot, in question, was to be handed over within 24 months from the date of execution of the said Agreement with further grace period of 6 months but not later than 30 months i.e. latest by 18.01.2014. Further, as per Clause 11.2 of the Agreement, in case, possession was not offered within the stipulated period, then the Opposite Party was liable to pay compensation calculated @Rs.50/- per sq. yard of the area every month until possession is actually handed over. Clauses 11.1 and 11.2 of the Plot Buyer's Agreement dated 19.07.2011, being relevant, are extracted hereunder:-
"11.1 - Subject to Force Majeure, as defined herein, and further subject to the Allottee having complied with all its obligations under the terms and conditions of this Agreement, and not being in default of any provision(s) of this Agreement including but not limited to the timely payment of all dues and charges including the total Sale Consideration, registration charges, stamp duty and other charges, and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to hand over the possession of the said Plot to the Allottee within a period of 24 (Twenty Four) months from the date of execution of this Agreement ("Commitment Period"). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 6 (Six) months ("Grace Period"), after the expiry of the said Commitment Period.
11.2-Subject to Clause 11.1, if the Company fails to offer possession of the said Plot to the Allottee by the end of the Grace Period, it shall be liable to pay to the Allottee compensation calculated at the rate of Rs.50/- (Rupees Fifty only) per sq. yd. of the area of the said Plot ("Delay Compensation") for every month of delay until the actual date fixed by the Company for handing over of possession of the said Plot to the Allottee. The Allottee shall be entitled to payment against such 'Delay Compensation' only after completion of all documentation including registration of the Conveyance Deed".
16. Since the Plot Buyer's Agreement was executed on 19.07.2011, 30 months period including 6 months grace period expired on 18.01.2014. Even the extended period of 12 months, in terms of Clause 11.3 of the Agreement expired on 18.01.2015. Against the total price of Rs.49,58,510.01 of the unit, in question, the complainant had made payments in the sum of Rs.47,26,947/- to the Opposite Party, which was undoubtedly her hard earned money. The complainant has placed on record letter dated 03.05.2016 (annexure C-14) followed by reminder dated 30.05.2016 (Annexure C-15) whereby she sought refund of the amounts paid qua the plot, in question. No doubt, the Opposite Party has stated that it obtained approvals/ permissions qua ground water, environment clearance, disposal of solid waste, NOC from Punjab Pollution Control Board, electricity, STP etc., as is evident from Annexures OP-15 to OP-25 placed on record by it (Opposite Party), but the fact remains that these approvals were obtained after the due date for possession and still possession of the plot, in question, has not been offered to the complainant, what to talk of its delivery. No plausible reason has been assigned by the opposite party, as to why it (Opposite Party) failed to deliver possession of the unit, by the date stipulated or by the time the complaint was filed on 15.02.2017, or even till date. Delay could only be condoned, under the terms and conditions of the Agreement, if there existed plausible and justified reasons. Clearly, there is delay in offering possession. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon'ble National Commission, held as under:-
"Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-
"I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery".
The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.
It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Further in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015 decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder while holding as under:-
"I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and, therefore, is entitled to refund the entire amount paid by him alongwith reasonable compensation, in the form of interest."
17. In the present case also, the Opposite Party committed breach of its obligation, in not offering possession of the plot, in question, within 30 months from 19.07.2011 i.e. date of signing of Buyer's Agreement and even after expiry of extended delay period of 12 months, on 18.01.2015. A perusal of Clause 11.3 of the Plot Buyer's Agreement clearly provides that "........from the end of the Grace Period (such 12 month period hereinafter referred to as the "Extended Delay Period"), then the Allottee shall become entitled to opt for termination of the Allotment/Agreement and refund of the actual paid up installment(s) made against the said Plot....". Since the Opposite Party failed to offer possession of the plot, in question, to the complainant, even after expiry of stipulated period and extended delay period i.e. 42 months from the execution of Plot Buyer's Agreement, in view of law laid down in aforesaid judgments, the complainant is entitled to refund of the deposited amount. By not offering possession of the unit, in question, complete in all respects, within the stipulated period and during extended delay period and by not refunding the deposited amount, the Opposite Party was deficient in rendering service.
18. It is to be further seen, as to whether, interest, on the amount to be refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.47,26,947/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Party, for its own benefit. There is no dispute that for making delayed payments, the Opposite Party was charging heavy rate of interest, for the period of delay in making payment of installments. It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). The complainant is, therefore, held entitled to interest @13% (simple) on the deposited amount.
19. The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment, and injury caused to her. The Opposite Party stated that compensation could be granted only if there is any loss or injury suffered by the complainant. It was further stated that there is no allegation of 'negligence' on the part of the Opposite Party on account of which any loss or injury is caused to the complainant. It may be stated that Hon'ble Apex Court in Balram Prasad Vs. Kunal Shah, (2014) 1 SCC 384, dealt with the plea urged on behalf of the complainant (in the said case) that the National Commission was wrong in rejecting different claims on the ground that same had not been made in the pleadings. The Hon'ble Apex Court, while observing that the claim for enhancement of compensation by the claimant was justified, relied upon its judgment in Nigamma and Anr. Vs. United India Insurance Company Ltd., (2009) 13 SCC 710, and held that the Court is duty-bound and entitled to award "just compensation", irrespective of the fact whether any plea on that behalf was raised by the claimant or not. In the complaint in hand, the complainant has specifically prayed for compensation of Rs.5 Lacs on account of mental agony. Clearly possession of the plot, in question, has not been offered to the complainant till date on account of which, she (complainant) suffered mental agony and physical harassment. The compensation in the sum of Rs.5 Lacs claimed by the complainant is, however, on the higher side. In our opinion, Compensation, for mental agony and physical harassment, in the sum of Rs.1,50,000/-, if granted, to the complainant, would be adequate to meet the ends of justice.
20. No other point, was urged, by the Counsel for the parties.
21. For the reasons, recorded above, the complaint is partly accepted, with costs. The Opposite Party is held liable and directed as under:-
(i) To refund the amount of Rs.47,26,947/- to the complainant, alongwith interest @13% p.a. (simple), from the respective dates of deposits within a period of 45 days, from the date of receipt of a certified copy of this order.
(ii) To pay an amount of Rs.1,50,000/-, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order.
(iii) In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% p.a. (simple), from the date of default i.e. after expiry of 45 days period, till realization and amount(s) mentioned in Clause (ii) above, with interest @13% p.a. (simple) from the date of filing the complaint till realization.
22. However, it is made clear that in case, the complainant has availed loan facility from any financial institution(s), such an institution shall have the first charge on the amount payable, to the extent, the same is due against the complainant.
23. Certified Copies of this order be sent to the parties, free of charge.
24. The file be consigned to Record Room, after completion.
Pronounced.
13.02.2018.
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT [DEV RAJ] MEMBER [PADMA PANDEY] MEMBER Ad