State Consumer Disputes Redressal Commission
Vipul Bakshi vs M/S Country Colonisers Pvt. Ltd. on 12 December, 2019
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Misc. Application No.796 of 2019
In/and
Consumer Complaint No.863 of 2018
Date of Institution : 02.11.2018
Date of Reserve : 05.11.2019
Date of Decision : 12.12.2019
1. Vipul Bakshi S/o Arun Kumar Bakshi, R/o House No.3128,
Sector 46-C, Chandigarh.
2. Arun Kumar Bakshi S/o Late Madan Lal Bakshi, R/o House
No.1441, Phase-10, Mohali.
....Complainants
Versus
1. M/s Country Colonisers Private Limited, through its Director's
Harmandeep Singh Kandhari, Rajinder Singh Chadha,
Manpreet Singh Chadha, Gurjit Singh Kochar, having its
registered office at P.O. Rayon and Silk Mills Adjoining Coca
Cola Depot, G.T. Road, Chheharta, Amritsar, Punjab-143105.
2. M/s Country Colonizers Private Limited through its Authorized
Signatory, Corporate Office at C-1, Sector-3, Noida.
3. Central Bank of India, SCO 26, Sector 15, Chandigarh
through its Branch Manager.
...... Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Mr.Rajinder Kumar Goyal, Presiding Member
Present:-
For the complainants : Sh.Navjot Singh, Advocate For Opp. Parties No.1&2 : Sh.Tejeshwar Singh, Advocate For Opposite party No.3 : None RAJINDER KUMAR GOYAL, PRESIDING MEMBER :
The complainants have filed this complaint, under Section 17 of the Consumer Protection Act 1986, (in short, "the Act"), for issuance of the following directions to the opposite parties:
I. to refund the amount of Rs.32,58,949/- deposited by the complainant along with transfer fees of Consumer Complaint No 863 of 2018 2 Rs.59,950/-, along with interest @ 15% per annum from the respective dates of deposit till realization of the amount.
II. to pay a sum of Rs.3,00,000/- on account of mental agony, physical harassment, deficiency in service and unfair trade practice;
III. to pay Rs.50,000/- as cost of litigation; and IV. any other direction which this Commission may deem fit in the facts and circumstances of the case.
Misc. Application No.796 of 2019
2. This application has been filed by opposite parties No.1 & 2 with the prayer to dismiss the consumer complaint being not maintainable in view of Section 79 read with Section 89 of the Real Estate (Regulation and Development) Act, 2016. It is stated that the Commission does not have jurisdiction to adjudicate upon the said dispute, in view of the provisions of the Real Estate (Regulation and Development) Act, 2016 which came into force on 01.05.2017. It was further submitted that RERA is a comprehensive act, enacted to serve the interest of consumers and regulate promoters in the real estate sector.
3. Reply to the application has not been filed by the complainant despite giving opportunities to the learned counsel for the complainant. However, learned counsel for the complainant argued at the time of final arguments and stated that this Commission has the jurisdiction to entertain the complaint Consumer Complaint No 863 of 2018 3 as per the law laid down by the Hon'ble Supreme Court as well as Hon'ble National Commission. Hence, the application filed by opposite parties No.1 & 2 be dismissed.
4. We have heard the arguments of the counsel for the parties and have carefully gone through the record.
5. In the present case the project in question was launched by opposite parties No.1 & 2 and the agreement was executed between the parties on 07.05.2015, Ex.C-1, for allotment of residential flat/apartment in question. The facts are not in dispute. The main stress of opposite parties No.1 & 2 is only with regard to the maintainability of the complaint before this Commission since the RERA has come into force on the date of filing of the present complaint. It needs to be mentioned that provisions of Sections 2, 20 to 39, 41 to 58, 71 to 78 came into force with effect from 01.05.2016 and the provisions of Sections 3 to 19, 40, 59 to 70 and Section 79 to 80 came into force with effect from 01.05.2017. It is also an admitted fact that the complainants had entered into Residential Floor Allottee(s) Arrangement prior to the coming into force of the RERA and they had also booked the flat/apartment much earlier to the date of enforcement of RERA in the State of Punjab and even in the country, in the year 2014. Having failed to comply with the terms of the said Arrangement the complainants have approached this Commission for the illegal acts, omissions and commissions and adoption of unfair trade practice and various types of deficiencies in service and as such, they being 'consumers' and the opposite parties being Consumer Complaint No 863 of 2018 4 'service providers' have approached this Commission under the C.P. Act. It would be appropriate to reproduce the relevant provisions of Sections 71, 79, 88, 89 of RERA as under:-
"71. Power to adjudicate.-(1) For this purpose of adjudicating compensation under sections 12, 14, 18 and section 19, the Authority shall appoint in consultation with the appropriate Government one or more judicial officer(s) deemed necessary, who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the prescribed manner after giving any person concerned a reasonable opportunity of being heard.
Provided that any person, whose complaint in respect of matters covered under sections 12, 14, 18 and section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protection Act, 1986 (68 of 1986), on or before the commencement of this Act, he may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act. (2).....
(3)....."
79. Bar of jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
88. Application of other laws not barred.--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. Consumer Complaint No 863 of 2018 5
89. Act to have overriding effect.-The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force."
Some questions were raised by the 'consumers' with the Ministry of Housing and Urban Property Alleviation, Government of India. Under Frequently Asked Questions (FAQ) at Sr. Nos. 85 and 86 it has been observed as under:-
"85. Are the civil courts and consumer forums barred from entertaining disputes under the Act? As per Section 79 of the Act civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under Section 12, 14, 18 and section 19 from the consumer forum and file it with the adjudicating officer appointed under the Act.
86. Can a complainant approach both the Regulatory Authority/adjudicating officer and the consumer forums for the same disputes?
The laws of the country do not permit forum shopping, thus, an aggrieved can only approach one of the two for disputes over the same matter."
In answer to question No.85 it has been stated that the jurisdiction of the Consumer Fora at District, State or National level has not been barred from the ambit of C.P. Act. Rather Section 71 of RERA provides the 'consumer', whose complaint in respect of matters covered under Sections 12, 14, 18 and Section 19 is pending before Consumer Complaint No 863 of 2018 6 the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under Section 9 of the C.P. Act, an option to seek permission from the Fora, as the case may be, to withdraw the complaint pending before it and file an application before the adjudicating officer under the RERA.
6. A perusal of Section 79 of RERA reveals that the provisions of said Act bar the jurisdiction of Civil Court. The Consumer Fora under the C.P. Act are not Civil Courts; rather, are performing the judicial functions, which are summary in nature. As such, bare reading of Section 79 of RERA makes it clear that the same is not applicable.
7. In answer to question No.86 it has been stated that the consumer/complainant can approach either of the two authorities i.e. the Consumer Fora under the C.P. Act or the authorities established under the RERA.
8. It is also relevant to mention that as per Section 3, the provisions of the C.P. Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Similarly Section 71 of the RERA has specifically mentioned about the applicability of the provisions, which falls under Section 12, 14, 18 and Section 19 of the C.P. Act and the first proviso to Section 3 of the RERA provides that the projects, which are ongoing on the date of commencement of the RERA and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within Consumer Complaint No 863 of 2018 7 a period of three months from the date of commencement of RERA. Section 88 of RERA says that application of other laws is not barred. The provisions of RERA shall be in addition to and not in derogation of the provisions of any other law for the time being in force. The provisions of Section 88 of the RERA and the provisions of Section 3 of the C.P. Act are almost identical, which means both the Fora have jurisdiction to entertain and decide the matter, whichever come in their respective jurisdiction. Section 89 of the RERA provides that the provisions of RERA shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. However, there is no inconsistency between the provisions of the two Central Acts. The C.P. Act is applicable where there is deficiency in service and adoption of unfair trade practice, whereas the provisions of RERA have own field i.e. Section 12, 14, 18 and 19 of RERA. This makes it very much clear that there is no inconsistency in the provisions of both the Acts. Section 88 of RERA has clarified that application of other laws is not barred. The remedies are additional remedies under the RERA as well.
9. Moreover, by introduction of RERA, the jurisdiction of the C.P. Act is not specifically ousted. The scope and reach of the C.P. Act of 1986 has been considered by the Hon'ble Supreme Court in catena of judgments, some of the important ones are: Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243, Fair Air Engineers (P) Ltd. vs. N. K. Modi (1996) 6 SCC 385, Skypay Couriers Limited v. Tata Chemicals Limited (2000) 5 SCC Consumer Complaint No 863 of 2018 8 294, State of Karnataka vs. Vishwabharathi House Building Cooperative Society (2003) 2 SCC 412, CCI Chambers Cooperative Housing Society Limited Vs. Development Credit Bank Limited (2003) 7 SCC 233, Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (2004) 1 SCC 305, H.N. Shankara Shastry Vs. Assistant Director of Agriculture, Karnataka (2004) 6 SCC 230.
10. In M.Lalitha's case (supra), Hon'ble Supreme Court noticed the background, the object and reasons and the purpose for which the Act of 1986 was enacted. After referring to its earlier judgments in M.K. Gupta's case (supra) and N.K. Modi's case (supra), the Hon'ble Supreme Court observed as under:-
"11. The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and matters connected therewith. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of the 1986 Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
12. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the Consumer Complaint No 863 of 2018 9 district, State and national level with wide range of powers vested in them. These quasi-judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non-compliance with their orders."
11. In Kishori Lal Vs. Chairman, Employees' State Insurance Corporation 2007(5) Recent Apex Judgments (R.A.J.) 68, the Hon'ble Supreme Court held as under:-
"17.......... The trend of the decisions of this Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated."
12. Further in National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. (2012) 2 SCC 506, it has been authoritatively held by the Hon'ble Supreme Court that the protection provided to the consumers under the Act is in addition to the remedies available under any other Statute.
13. Similarly, State Consumer Disputes Redressal Commission Chandigarh, U.T. Chandigarh in Consumer Case No.659 of 2017 (Veena Ghai & Anr. v. Manohar Infrastructure & Constructions Pvt. Ltd.), which was decided along with bunch of Consumer Complaint No 863 of 2018 10 similar other cases, vide order dated 28.06.2018, observed that RERA and PAPRA will not debar the jurisdiction of the Consumer Fora in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the opposite parties. It has been held as follows:-
"Further contention was raised by Counsel for the opposite parties that in the face of provisions of the RERA, under which the opposite parties have registered the project, in question, on 15.09.2017, it was not open to this Commission, to entertain and decide the present complaint. He further asserted that sufficient safeguard is provided under the provisions of RERA and if the complainants are feeling aggrieved of any action, on the part of the opposite parties, they may approach under the said Act (RERA) and not under the Act, 1986.
We are not inclined to accept this argument. At the time of arguments, it is very fairly admitted by Counsel for the contesting parties, that the provisions of RERA are prospective in nature. It was also so said by the High Court of Bombay in the case of NeelKamal Realtors Suburban Pvt. Ltd. and anr. Vs. Union of India and ors. 2018 (1) R.C.R. (Civil) 298. It is on record that under the RERA, the opposite parties got themselves registered their project, only on 15.09.2017. It is also on record that some of the provisions of RERA came into operation on 01.05.2016 and even the remaining of it, in May 2017. In all, the grievance has been raised by the complainants qua wrongful act/mistake done leading to deficiency in providing service and adoption of unfair trade practice, in selling the project by the opposite parties without sanctions/approvals, before coming into existence of RERA. Reading of the provisions of Section 88 Consumer Complaint No 863 of 2018 11 of RERA makes it very clear that the same are in addition and not in derogation of the provisions of any other law for the time being in force. Section 79 of the RERA further makes it very clear that jurisdiction of only the Civil Court to entertain a suit or proceedings qua action taken as per the provisions of the said Act, is barred.
It may be stated here that the Consumer Foras under the Act, 1986 despite having some trappings of a Civil Court are not the Civil Courts. As such, the jurisdiction of the Consumer Foras is not debarred, to entertain the complaints filed by consumers, alleging deficiency in providing service, negligence and adoption of unfair trade practice against the opposite parties. Intention of the framers of law has been made clear by the concerned Department i.e. Ministry of Housing and Urban Property Alleviation, Government of India in its website www.mygov.in/group/ministry-housing-and- urban-poverty-alleviation. Under Frequently Asked Questions (FAQ), at Sr.nos. 85 and 86, it was observed as under:-
"85. Are the civil courts and consumer forums barred from entertaining disputes under the Act?
As per section 79 of the Act civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under section 12, 14, 18 and section 19, from the consumer forum and file it with the adjudicating officer appointed under the Act.Consumer Complaint No 863 of 2018 12
86. Can a complainant approach both the Regulatory Authority / adjudicating officer and the consumer forums for the same disputes?
The laws of the country do not permit forum shopping, thus, an aggrieved can only approach one of the two for disputes over the same matter."
It was also so said by the State of Punjab in its Official Website Portal rera.punjab.gov.in. The above fact clearly indicates that in the face of provisions of the RERA, any action taken under the provisions of Act 1986 is not debarred. In view of above findings, we can safely say that RERA and PAPRA will not debar the jurisdiction of this Commission in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the opposite parties. Further, in another judgment passed by the Hon'ble National Commission passed in Consumer Case No.1764 of 2017 titled as "Ajay Nagpal Vs. Today Homes & Infrastructure Pvt. Ltd." decided on 15.04.2019, wherein it has been held as under:-
"40. From the various decisions of the Hon'ble Supreme Court referred to above, the following principles emerge:-
(i) The Consumer Protection Act, 1986 is a supplement Act and not in derogation of any other Act.
(ii) Any Consumer who is aggrieved by any defect in goods purchased or deficiency in service as also regarding unfair trade practice, can approach the Consumer For a by filing the complaint under the Act. Even a Class Action Complaint is permissible under the Act.Consumer Complaint No 863 of 2018 13
(iii) The Consumer Fora constituted under the Consumer Protection Act, 1986 are not Civil Courts.
(iv) The Consumer Fora can provide for the reliefs as contemplated under Section 14 of the Act.
(v) A Consumer cannot pursue two remedies for the same cause of action. However, if a Consumer has not approached for redressel of its grievance under the particular Statute, the Consumer can approach the Consumer Fora under the Consumer Protection Act. But, if the Consumer had already approached the Authority under the relevant Statute, he cannot simultaneously file any complaint under the Consumer Protection Act.
(vi) Mere availability of a right to redress the grievance in a particular Statute will not debar the complainant/ Consumer from approaching the Consumer Fora under the Act.
(vii) Even though under Sections 14, 15, 18 and 19 of RERA, various provisions have been made which are to be followed by the Developer/Promoters and the rights and duties and the return of amount as compensation as also rights and duties of Allottees, yet same cannot mean to limit the right of the Allottee only to approach the Authorities constituted under the RERA, he can still approach the Consumer Fora under the Consumer Protection Act.
(viii) Section 71 of RERA which gives the power to adjudicate, does not expressly or impliedly bar any person from invoking the provisions of the Consumer Protection Act. It has also given a liberty to the person whose complaint is pending Consumer Complaint No 863 of 2018 14 before the Consumer Fora to withdraw it and file before the RERA authorities.
(ix) Section 79 of RERA only prohibits the jurisdiction of Civil Court from entertaining any suit or proceeding in respect of any matter which can be decided by the Authorities constituted under the RERA. As the Consumer Fora are not Civil Courts, the provisions of Section 79 which bar the jurisdiction of Civil Courts, will not be attracted. So far as to grant injunction is concerned, only that power has been taken away Section 79. But, it does not, in any manner, effect the jurisdiction of the Consumer Fora in deciding the complaints.
Both, the Consumer Protection Act, 1986 and the Real Estate (Regulation and Development) Act, 2016 are supplemental to each other and there is no provision in the Consumer Protection Act, which is inconsistent with the provisions of RERA."
14. In view of law laid down in the above noted authorities, it is held that this Commission is competent to entertain and decide the present complaint and the provisions of RERA do not bar the jurisdiction of the Consumer Fora. Accordingly, the application filed by the opposite parties No.1 & 2 is hereby dismissed. Facts of the Complaint
15. Brief facts, as set out in the complaint, are that the complainant No.1 is doing a private job and complainant No.2 is a retired govt. employee. The complainants came across by the assurances made by opposite parties No.1 & 2 through various newspapers, media, marketing emails and telemarketing with regard to launching of its residential township in Sectors 85 and 99, Consumer Complaint No 863 of 2018 15 S.A.S. Nagar, Mohali. The complainants purchased an Independent an apartment 53/GF, Ground Floor, Sector 99, Mohali, Punjab in Group Housing Development named as "Wave Floors", SAS Nagar, Sector 85 & 99, Mohali having a chargeable super area of approx. 1060 sq.ft. The company's broker R.V.Realtech, Mohali in the newspaper advertised for the resale of under construction residential units of apartment, in question in the said project. The complainant made the payment to the original buyers and to the opposite parties No.1 & 2 to get the retransfer done in the name of the complainants. Thereafter, an Apartment Allottee(s) Arrangement was executed between the parties on 07.05.2015, wherein the complainants were allotted apartment No.53/GF, Ground Floor, Sector-99, Mohali in Group Housing Development named as "Wave Floors" having chargeable area 1060 sq.ft. To make the timely payments/ instalments the complainants availed a housing loan of Rs.32,00,000/- from Central Bank of India, Sector-15, Chandigarh. The complainants as per agreement chose Construction Linked Plan. The Basic Sale Price of the Unit was fixed as Rs.42,00,000/- which includes club membership of Rs.75,000/-. As per condition No.1.2 of the Agreement, the right, title and interest in the apartment, in question, shall be transferred and conveyed in favour of the complainants by way of legal documents of conveyance. As per condition No.5.1 of the agreement, the opposite parties were to handover the possession within 24 months along with an extended period of 6 months from the date of execution of the Apartment Allottee(s) Arrangement or from the date of start of construction of Consumer Complaint No 863 of 2018 16 Group Housing named as "Wave Floors", whichever is later subject to force majeure circumstances. In condition No.5.5 it was mentioned that in case of delay in construction of apartment, the delay charges would be payable to the complainants at the rate of Rs.5/- per sq. ft. per month on the Saleable Area. The possession of the unit, in question, was not delivered to the complainant after expiry of the stipulated period. The complainants shocked to see while visiting the site that the construction work was put to halt. On enquiry from the opposite parties No.1 & 2 it was assured to the complainants that the possession would be delivered to them shortly. The opposite parties have not honoured its commitments by not handing over the possession within the stipulated period. The opposite parties have also failed to show the requisite Certificates obtained from the competent authorities. When the complainants lost the hope to get the delivery of the flat, they sent a registered letter dated 10.12.2017 with request to cancel the flat/Unit and to refund the amount along with interest. It has been further averred that opposite parties are the habitual defaulters. The aforesaid act and conduct of the opposite parties No.1 & 2 amounts to deficiency in service. Hence, the present complaint, seeking aforesaid relief.
16. Upon notice, the opposite parties appeared. However, opposite parties No.1 & 2 filed their written statement, whereas opposite party No.3 had not filed its written statement, therefore the right of opposite party No.3 to file the written statement was closed by order, vide order dated 14.01.2019.
Consumer Complaint No 863 of 2018 17
17. Opposite parties No.1 & 2 filed their written statement taking preliminary submissions that the present complaint is not maintainable as the complainants do not fall under the definition of 'consumer' as defined in the Act as the complainants have sought to buy the housing unit, in question, for commercial purposes and not for residential purpose. Moreover, the complainant No.1 has already owns multiple residential properties in Chandigarh. The details of the properties are as follows:
i) House No.3128, Sector 46-C, Chandigarh.
ii) House No.3880, Top Floor, Sector 32-D, Chandigarh.
Even the complainant No.2 has own multiple properties. The detail of properties owned by complainant No.2 is as under:-
i) House No.1441, Phase X, Mohali.
ii) House No.1369-B, Phase -10 Mohali.
iii) House No.139-B, MIG Phase 10, SAS Nagar, Mohali.
iv) House No.705, Phase 10, SAS Nagar to House No.1370/A, Phase -10, SAS Nagar, Mohali.
18. The complainants have also failed to explain the circumstances under which they require an additional residential unit in Chandigarh and Mohali. The complainants themselves in para 2 of the complaint stated that they want the unit, in question for the purpose of self livelihood. Hence, they do not fall within the definition of 'consumer' as defined under the Act. It has been further contended that due to ongoing slump in the real estate market, the complainants are no longer interested in retaining the Unit, in question. The complainants are clearly a commercial buyer who Consumer Complaint No 863 of 2018 18 deals and invests in properties. The complainants also violate clause 8.1 of the Arrangement, wherein it has been clearly mentioned that the allottee shall use the said 'Apartment' only for the residential purposes only. The present complaint is not maintainable in view of the arbitration clause 13 in the Apartment Allottee(s) Arrangement. The complainants have relied upon Clause 5.1 which states that the Developer shall endeavour to complete the development of the project as far as possible within 30 months. However, there is no mandatory date of completion has been mentioned of the project. As per clause 5.5 of the agreement, that in case of delay in construction of the flat, for the reasons attributable to opposite parties No.1&2, it shall be liable to pay Rs.5/- per sq.ft. per month for the delayed period. It has been further contended that the construction and development of the unit, in question, is complete in all respects and possession thereof stands offered to the complainants vide letter dated 07.01.2019. Further, the answering opposite parties have also obtained the permission for Occupancy pertaining to the unit, in question. A sum of Rs.13,87,400/- has also become due against the complainants, which they failed to pay. It was further pleaded that the answering opposite parties No.1& 2 entered into a Memorandum of Agreement (MoA) dated 03.02.2006 with the Government of Punjab and as per Clause 5(e) thereof, the State Government was to acquire land under the provisions of Land Acquisition Act, 1894 and transfer the same to the answering opposite party No.1 for development. However, the State Government failed to acquire any land for it and, Consumer Complaint No 863 of 2018 19 as such, the approved plan of the entire project also shows certain "Critical Area' i.e. the lands, which are not in their possession, due to failure of the State Government. The lands, which are not available with it, form 10% of the total land required for the project, due to which laying of lines for basic services is not complete. The request was made to the Land Acquisition Collector, Greater Mohali, vide letter dated 19.01.2012, requesting the State Government to acquire 23.21 acres of land, which falls within the master plan of the project, but without any result. However, opposite parties No.1 & 2 has managed to enter into a Land Use Agreement with the local farmer, from whose land an access road has been laid for proper access to the project. Thus, the delay, if any, in the completion of the project is due to inaction on the part of GMADA, which was beyond the control of opposite parties No.1 & 2. The complainants have prayed for refund of Rs.33,18,498/-, however, the complainants have paid only Rs.32,58,948/- which is clearly reflected from the account statement appended and admitted by the complainants themselves. This Commission has got no jurisdiction to entertain and decide the present complaint. It has been further contended that intricate questions of law and facts are involved and only the competency to deal with the case is Civil Court. The complainants have no cause of action to file the present complaint against opposite parties No.1. & 2. The complaint is liable to be dismissed being barred by limitation as the complainant has filed the complaint beyond the statutory period of two years from the date of accrual of the alleged cause of action. On merits, all the Consumer Complaint No 863 of 2018 20 contentions as contended by the opposite parties in its preliminary objections have been reiterated and denying the allegations of the complainants as averred by them in their complaint. It is prayed that the complaint be dismissed, with costs.
19. To prove their claim, the complainants have filed the affidavit along with documents as Ex.C-1, Ex.C-1/2, Ex.C-1/3, Ex.C-2 to Ex.C-6.
20. On the other hand, in support of their contentions, opposite parties No.1&2 filed the affidavit of Sh.Amarjit Singh, Authorized Signatory along with documents as Ex.OP-1/1 to Ex.OP-1/5, Ex.OP- 1/5A, Ex.OP-1/5B, Ex.OP-1/6 to Ex.OP-1/11.
21. We have heard learned counsel for the complainants and opposite parties No.1 & 2 as none has appeared on behalf of opposite party No.3.
22. Learned counsel for the complainants argued that the complainants on the assurances given by opposite parties No.1 & 2 purchased an Independent Residential Floor (in short, "flat") from opposite parties No.1 & 2, bearing No.53/GF, Ground Floor, Sector 99, Mohali, measuring 1060 sq.ft., having built up area in the said project and paid Rs.32,58,949/- against the total sale consideration. A Buyer's Agreement dated 07.05.2015 was also executed between the parties. The complainant opted Construction Linked Plan. As per Clause 5.1 of the agreement, the possession was to be delivered within a period of 24 months with an extended period of 6 months from the date of execution of the agreement. Accordingly, the possession was to be handed over on or before Consumer Complaint No 863 of 2018 21 07.11.2017. Also, to make the timely payments, the complainant availed a housing loan of Rs.32,00,000/- and a Tripartite Agreement was executed between the complainants, opposite parties No.1 & 2 and opposite party No.3. When the complainants visited the site they were shocked to see that only the structure was standing and no construction was going on. Despite repeated requests and reminders for handing over the possession, opposite parties No.1 & 2 could not give any satisfactory reply. Thereafter, the complainants demanded for refund of the deposited amount. On this, they assured the complainants to hand over the possession soon but no fruitful result came out. The complainants are also paying the pre- EMI as the possession has not been handed over. The complainants have already paid huge amount in the shape of pre- EMI to opposite parties No.3. The purpose of use has been disclosed in para 2 of the complaint. The opposite parties No.1 & 2 has misread the para 2 wherein it has been mentioned livelihood only and not earning livelihood and further it was defined as 'purely for the purposes of residence'. The opposite parties No.1 & 2 have not applied for even Completion Certificate as per the notification of the GMADA. This act and conduct of opposite parties No.1 & 2 amount to deficiency in service. Hence, the present complaint.
23. Per contra, learned counsel or opposite parties No.1 & 2 vehemently argued that the complainants do not fall within the definition of consumer as defined in the Act as both the complainants have multiple properties in their name. The details of the same have been detailed in its written statement. The Consumer Complaint No 863 of 2018 22 complainants have grossly failed to explain the circumstances under which they require apartment for residential purposes. The complainant also violates clause 8.1 of the Arrangement. As per the terms and conditions of Apartment Allottee(s) Arrangement, the complainants are not entitled for refund. The complainants are defaulter in making the payments. The complainants failed to fulfill their obligations under Clause 12(a) of the Allottee(s) Arrangement, therefore, under Clause 12(i), the Developer retains the right to cancel allotment and forfeit the earnest money. It was contended that there was no time for mandatory completion of construction of the Project under the Apartment Allottee(s) Arrangement. The opposite parties have already obtained the Partial Completion Certificate of an area of 171.557 acres on 12.09.2018. The Occupation Certificate has also been obtained on 04.01.2019, Ex.OP1/5. It was further pleaded that the answering opposite parties No.1& 2 entered into a Memorandum of Agreement (MoA) dated 03.02.2006 with the Government of Punjab and as per Clause 5(e) thereof, the State Government was to acquire land under the provisions of Land Acquisition Act, 1894 and transfer the same to the answering opposite party No.1 for development. However, the State Government failed to acquire any land for it and, as such, the approved plan of the entire project also shows certain "Critical Area' i.e. the land, which is not in their possession, due to failure of the State Government. The land, which is not available with it, form 10% of the total land required for the project, due to which laying of lines for basic services is not complete. The request was made to Consumer Complaint No 863 of 2018 23 the Land Acquisition Collector, Greater Mohali, vide letter dated 19.01.2012, requesting the State Government to acquire 23.21 acres of land, which falls within the master plan of the project, but without any result. However, opposite parties No.1 & 2 has managed to enter into a Land Use Agreement with the local farmer, from whose land an access road has been laid for proper access to the project. Thus, the delay, if any, in the completion of the project is due to inaction on the part of GMADA, which was beyond the control of opposite parties No.1 & 2. There is no deficiency in service or unfair trade practice on the part of opposite parties No.1 & 2. Complaint is without merit, it be dismissed with costs. Consideration of Contentions
24. First of all, the issue is to be decided whether the complainant falls within the definition of 'consumer' as the opposite parties No.1 & 2 raised an objection that the complainants and his father have multiple properties in their name.
In this regard, it is relevant to mention that there is no evidence from the side of the opposite parties No.1 & 2 to prove that the complainants have their own multiple properties and are indulged in sale/purchase of property for commercial purpose. Therefore, simple assertion in this regard in the reply of opposite parties No.1 & 2, without any cogent and convincing evidence in support thereof, is not sufficient to prove this fact. Hon'ble 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 Consumer Complaint No 863 of 2018 24 KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA STATE 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. The Hon'ble National Commission in III (2015) CPJ 63 (NC) Beatty Tony versus Prestige Estate Projects Pvt. Ltd., also held that merely on booking of the plot it cannot be presumed that it is booked for 'commercial purpose' and the complainant was considered as a 'consumer'. In the instant case also, as already discussed above, there is no evidence led by the opposite parties No. 1 & 2 to prove that the complainants indulged in sale/purchase of properties or that they purchased the plot, in question, for further sale or for earning profits. Accordingly, the above said objection/contention of opposite parties is rejected and the complainants are held to be 'consumers', under the Act.
25. So far as the other objection of these opposite parties that as per Arbitration Clause-13 of the agreement, Ex.C-1, the matter between the parties is liable to be referred to the Arbitrator, is concerned, it is relevant to mention here that the Larger Bench of the Hon'ble National Commission, vide order dated 13.07.2017, Consumer Complaint No 863 of 2018 25 passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr., also held that an Arbitration Clause in the afore-stated kind of Agreements between the Complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The 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 Hon'ble National Commission has also been dismissed by the Apex Court, vide order dated 13.02.2018. Consequently, the existence of an Arbitration Clause is not a bar to resolution of this dispute by this Commission. Accordingly, the said objection of these opposite parties No.1 & 2 is also rejected.
26. Opposite parties took another objection in their reply that intricate questions of law and facts are involved, therefore, this Commission has no jurisdiction to entertain the complaint. In case we go through the pleadings of the parties, the complainants had booked one apartment with opposite parties and had paid a sum of Rs.32,58,948/-, as per Ex.C-6, as demanded by the opposite parties No.1 & 2 from time to time. Buyer's agreement is there and opposite parties No.1 & 2 had failed to deliver the possession within the time frame. It is only the interpretation of agreement and then to see whether there is any deficiency in service on the part of the opposite parties No.1 & 2? We do not see that any complicated questions of law and facts are involved, which cannot be adjudicated by this Commission. In this regard, we are fortified by the judgment of Consumer Complaint No 863 of 2018 26 'Dr.J.J.Merchant and Ors. V. Shrinath Chaturvedi' 2002(6) SCC 635, wherein it was held that the State Commission and District Forum are headed by retired High Court Judges and Officers of District Judge level and in our view, this is not such a case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion.
27. Another objection raised by opposite parties No.1 & 2 is that the present complaint is barred by limitation as the complaint has been filed beyond the statutory period of two years. In this regard, we find that the complainants booked an apartment with opposite parties No.1 & 2 for a total sale consideration of Rs.42,00,000/-. An Independent Residential Floor Allottee(s) Arrangement was executed between the parties on 07.05.2015, wherein the complainants were allotted a Residential Floor bearing No.53/GF on Ground Floor, in Sector 99, Mohali having saleable area of 1060 sq.ft. in their project. As per Clause 5.1 of the agreement, the possession was to be delivered to the complainants within 24 months with an extended period of 6 months from the date of execution of this Independent Residential Floor Allottee(s) Arrangement and/or from the date of start of construction of "Independent Residential Floor" whichever is later. In this way, the possession was to be delivered to the complainants on or before 07.11.2017. However, the opposite parties No.1 & 2 have failed to deliver the possession despite repeated requests and after receiving the substantial amount from the complainants. It is now well settled that in such cases there is a continuous cause of action Consumer Complaint No 863 of 2018 27 till the possession is delivered. Hon'ble National Commission in "Navin Sharma (Dr. ) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr." 2016(2) CLT 457 has held that unless or until the complainants get possession of the flats, they have got continuous cause of action. In para 8 of the said judgment it has been observed by the Hon'ble National Commission as under:-
"8. The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action.
This view finds support from this authority reported in "Raghava Estates Ltd. v.
Vishnupuram Colony Welfare Association"
Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012."
Since possession has not been delivered till date, therefore, in view of the ratio of the law laid down in the above noted authority, it is a continuous cause of action and the complaint filed by the complainant is within limitation.
28. At the outset, it is relevant to mention that the merits of the present complaint are squarely covered by the earlier verdicts given by this Commission in following cases:
i) Consumer Complaint No.658 of 2017 (Gurvinder Singh v. M/s Country Colonizers Private Limited & Anr.) decided on 06.02.2018;Consumer Complaint No 863 of 2018 28
i) Consumer Complaint No.725 of 2017 (Sukhvinder Singh v. Country Colonizers Private Limited & Ors.) decided on 18.01.2018; and
ii) Consumer Complaint No.409 of 2018 (Pawan Kumar & Anr. Vs. Country Colonizers Private Limited & Ors.) decided on 27.08.2018.
iii) Consumer Complaint No.409 of 2018 (Pawan Kumar & Anr. Vs. Country Colonizers Private Limited & Ors.) decided on 27.08.2018.
iv) Consumer Complaint No.578 of 2018 (Mr.Rajesh Singh Solanki & Anr. Vs. M/s Country Colonisers Private Ltd.) decided on 14.12.2018.
So, we intend to dispose of this matter, in view of the decisions given in the above noted cases.
29. Admittedly, the complainants purchased the unit, in question, from opposite parties. Apartment Allottee(s) Arrangement, Ex.C-1, was executed between the complainants and opposite parties on 07.05.2015. The basic sale price of the unit was Rs.42,00,000/-, excluding EDC, IDC and other charges. Against the total sale consideration, the complainants have paid Rs.32,58,948/- as per account statement issued by the opposite parties, Ex.C-6. Out of which Rs.26,08,948/- was disbursed by Central Bank of India as per Certificate dated 20.01.2018, Ex.C-6. As per Clause 5.1 of the said agreement, subject to Clause 5.2 and further subject to all the allottee(s) of the said "Apartment" in the said project making timely payment(s), the developer was to endeavour to complete the Consumer Complaint No 863 of 2018 29 development of the project in general and the said apartment in particular as far as possible within 24 months, with an extended period of 6 months from the date of execution of the Apartment Allottee(s) Arrangement and/or from the date of start of construction of Group Housing named 'Wave Gardens', whichever was later. There is no evidence, as to when the construction of the said unit/flat had started. Thus, we infer that the possession was to be delivered within 24 months with an extended period of 6 months from the date of execution of agreement i.e. upto 07.11.2017. However, opposite parties No.1 & 2 failed to develop/complete the unit, in question, so as to deliver its possession to the complainants by that date, despite receipt of substantial amount from the complainants towards the price of the flat, in question. The complainants demanded the Occupation / Completion Certificate from the opposite parties No.1 & 2, which they failed to show to the complainants.
30. Opposite parties No.1 & 2 have raised the plea that due to force majeure circumstances, it failed to complete the project because as per the Memorandum of Agreement dated 03.02.2006 (in short 'MoA') the State Government was to acquire the land for their project, but State Government failed to acquire land, as per Clause 5(e) of the MoA, under the provisions of Land Acquisition Act, 1894. Opposite parties further pleaded that they made several requests to the State Government to initiate the acquisition and handover the possession of the land to them to carry out development work on the same and that GMADA was to provide Consumer Complaint No 863 of 2018 30 external access roads to the project, who have failed to do so. Thus, the delay in completing the project was only due to inaction on the part of GMADA.
31. The aforesaid plea of opposite parties is not tenable, because according to provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"), it was their duty to supply the information with regard to their ownership, permissions from PUDA/GMADA, licenses and 'Change of Land Use' etc. The non- supply of this vital information to the complainants is against the provisions of PAPRA.
32. In Section 3 of PAPRA, 'General liabilities of the promoter' have been explained, which are as under:-
"3. General Liabilities of Promoter:-
Notwithstanding anything in any other law for the time being in the force, a promoter, who develops a colony or who constructs or intends to construct a building of apartments, shall, in all transactions with persons taking or intending to take a plot or an apartment on ownership basis, be liable to give or produce, or cause to be given or produced, the information and the documents mentioned hereinafter in this section.
(2) A promoter who develops a colony or who constructs or intends to construct such building of apartments shall,-
(a) make full and true disclosure of the nature of his title to the land on which such colony is developed or such building is constructed or is to be constructed, such title to the land having been duly certified by an attorney-at-law or an advocate of not less than seven years standing, after he has examined the transactions concerning it in the previous thirty years ; and if the land is owned by another person, the consent of the owner of such land to the development of the colony or construction of the building has been obtained;
(b) 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;
(c) give inspection on seven days, notice or demand,-
(i) 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; and Consumer Complaint No 863 of 2018 31
(ii) of the plan and specifications of the building built or to be built on the land as well as of the common areas and facilities and common services provided (including supply of electricity and water, sewerage and drainage systems, lifts, fire-fighting equipment), such plans and specifications being in accordance with the provisions of the building regulations, and approved by the authority which is required so to do under any law for the time being in force, indicating thereon what parts of the building and the appurtenant areas are intended to be kept as common areas and facilities in the case of apartments :
Provided that the number and sizes of the apartments shall conform to such building regulations, and the area of an apartment shall not exceed such limit as may be fixed by the competent authority;
(d) display or keep all the documents, plans and specifications or copies thereof referred to in clauses (a), (b) and (c) of this sub-section at the site and in his office and make them available for inspection to persons taking or intending to take a plot or an apartment and after the association is formed, he shall furnish the association a copy of these documents and of the sanctioned plan of the building;
(e) disclose the nature of fixtures, fittings and amenities, including the provision for one or more lifts, provided or to be provided;
(f) disclose on reasonable notice or demand, if the promoter is himself the builder, the prescribed particulars as respects the designs and the materials to be used in construction, and, if the promoter is not himself the builder, disclose all agreements entered into by him with the architects and contractors regarding the design, materials and construction of the building;
(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly;
(h) except where there are no agreements about specific plots or apartments and allotment is made by draw of lots, prepare and maintain a list of plots or apartments with their numbers, the names and addresses of the parties who have taken or agreed to take plots or apartments, the price charged or agreed to be charged therefor, and the terms and conditions, if any, on which the plots or apartments are taken or agreed to be taken;
Provided that the competent authority may direct that,-
(g) in the case of residential apartments, if the total number of apartments is one hundred or more, ten percent of the apartments; and Consumer Complaint No 863 of 2018 32
(ii) in the case of colony, if the total area of the colony is forty hectares or more, ten per cent of the area under residential plots and houses, be reserved for being sold or leased to such person belonging to such economically weaker section of society, in such manner and on such terms and conditions as may be prescribed;
(i) state in writing, the precise nature of and the terms and conditions governing the association to be constituted of persons who have taken or are to take the apartments;
(j) not allow person to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained;
(k) make a full and true disclosure of all outgoings, including ground rent, if any, municipal or other taxes, charges for water and electricity, revenue assessment, interest on mortgages or other encumbrances, if any;
(l) give the estimated cost of the building and the apartments proposed to be constructed, or colony to be developed, and the manner in which escalation in such cost for valid reasons may be approved by mutual agreement ;
(m) make a full and true disclosure of such other information and documents in such manner as may be prescribed; and
(n) give on demand and on payment of reasonable charges true copies of such of the documents referred to in any of the clauses of this sub-section as may be prescribed.
Further Section 4 of PAPRA provides as follows:
4. Issuing of Advertisement or Prospectus:-
(1) No promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such apartments or plots to make advances or deposits, unless,-
(a) the promoter holds a certificate of registration under sub-
section (2) of section 21 and it is in force and has not been suspended or revoked, and its number is mentioned in the advertisement or prospectus; and
(b) a copy of the advertisement or prospectus is filed in the office of the competent authority before its issue or publication.
(2) The advertisement or prospectus issued under sub- section (1) shall disclose the area of the apartments or plots offered for sale, title to the land, extent and situation of land, the price payable and in the case of colonies, also layout of the colony, the plan regarding the development works to be executed in a colony and the number and the validity of the licence issued by the competent authority under sub-section (3) of section 5, and such other matters as may be prescribed.
Consumer Complaint No 863 of 2018 33(3) The advertisement or prospectus shall be available for inspection at the office of the promoter and at the site where the building is being constructed or on the land being developed into a colony, alongwith the documents specified in this section and in section 3.
(4) When any person makes an advance or deposits on the faith of the advertisement or prospectus, and sustains any loss or damage by reason of any untrue statement included therein, he shall be compensated by,-
(a) the promoter, if an individual;
(b) every partner of the firm, if the promoter is a firm;
(c) every person who is a director at the time of issue of the advertisement or prospectus, if the promoter is a company :
Provided, however, that such person shall not be liable if he proves that,-
(a) he withdrew his consent to become a director before the issue of the advertisement or prospectus; or
(b) the advertisement or prospectus was issued without his knowledge or consent, and on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(c) after the issue of the advertisement or prospectus and before any agreement was entered into with buyers of plots or apartments, he, on becoming aware of any untrue statement therein, withdrew his consent and gave reasonable public notice of the withdrawal and of the reasons therefor. (5) When any advertisement or prospectus includes any untrue statement, every person who authorised its issue, shall be punished with imprisonment for a term which may extend upto one year or with fine which may extend upto five thousand rupees, or, with both, unless he proves that the statement was immaterial or that he had reason to believe and did upto the time of issue of the advertisement or prospectus believe that the statement was true."
33. Opposite parties No.1 & 2 have not produced any evidence to prove that they have complied with the aforesaid provisions of Sections 3 and 4 of PAPRA in letter and spirit, by making full and true disclosure of the nature of their title to the land on which such colony was to be developed or such building was to be constructed. There is also no evidence on record to prove that before allotment of the unit, in question, to the complainants, they were made aware about the execution of the above MoA Consumer Complaint No 863 of 2018 34 between them and the State Government; which might have affected the decision of the complainants for purchasing the unit, in question, from them, through resale/transfer, in those circumstances. By not complying with the above said provisions of PAPRA, opposite parties are certainly guilty of rendering deficient services and adopting unfair trade practice.
34. Further, 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/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. As such, these opposite parties also violated Section 9 of the PAPRA.
35. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the 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 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."
36. The 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. The complainant Consumer Complaint No 863 of 2018 35 has made payment of substantial amount to the opposite parties, with the hope to get the possession of the unit within a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and development thereof within a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in injury and loss of opportunity to the complainant. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the unit within a reasonable period. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties, i.e. builders, knew from the very beginning that they had not complied with various provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period and, thus, by misrepresentation induced the complainant to book the unit, due to which she has 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 builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of Consumer Complaint No 863 of 2018 36 opportunities.
37. With regard to opposite party No.3, the complainants have not sought any relief against opposite party No.3. The opposite party No.3 is the Bank from whom the complainants obtained the loan to the tune of Rs.33,00,000/- for making the payment towards the price of the unit, in question, to opposite parties No.1&2. Tripartite Agreement Ex.C-2 was duly executed between the parties. Since opposite parties No.1&2 failed to complete/develop the project, so as to deliver possession of the unit, in question, to the complainants within the stipulated period of 30 months from the date of Agreement and the complainants are held entitled to refund of the entire deposited amount, along with interest, so first of all, the outstanding amount of loan advanced by opposite party No.3 is to be paid to it and thereafter the remaining amount, if any, is to be paid to the complainant.
38. In view of our above discussion, the complaint is allowed against opposite parties No.1&2 and the same is dismissed against opposite party No.3. Following directions are issued to opposite party No.1:-
i) to refund the amount of Rs.32,58,948/-, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA;
It is made clear that, first of all, opposite party No.3 shall issue a certificate qua balance repayable loan amount as on the date of order and Consumer Complaint No 863 of 2018 37 opposite parties No.1&2 shall pay the outstanding amount to opposite party No.3-Central Bank of India towards the loan advanced by it to the complainants and, thereafter, the remaining amount, if any, shall be paid to the complainants;
(ii) to pay Rs.50,000/-, as compensation for the mental agony and harassment suffered by the complainants as well as litigation expenses.
39. Arguments in this complaint were heard on 05.11.2019 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
40. These complaint could not be decided within the statutory period due to heavy pendency of the court cases.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER December 12th ,2019 parmod