State Consumer Disputes Redressal Commission
Emmar Mgf vs Ajay Bansal on 6 November, 2012
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
U.T.,
CHANDIGARH
First Appeal No.
:
348 of 2012
Date of Institution
:
19.10.2012
Date of Decision
:
06.11.2012
1.
M/s Emaar MGF Land Limited, Registered Office, ECE
House, 28 Kasturba Gandhi Marg, New
Delhi.
2.
M/s Emaar MGF Land Limited,
Branch Office SCO 120-122, 1st Floor, Sector 17-C, Chandigarh.
Both
the appellants through their
Authorized signatory Sh.Mohit
Kaura.
Appellants
V e r s u s
Ajay Bansal son of Sh. Narinder
Kumar Bansal, resident of Flat No.121, Vasundhara Apartments, Sector 9, Rohini,
Delhi 110085.
....Respondent
Appeal U/s 15 of
Consumer Protection Act, 1986
BEFORE: JUSTICE SHAM SUNDER(Retd), PRESIDENT.
MRS. NEENA SANDHU,
MEMBER.
Present: Sh. Vineet Sehgal, Advocate for the appellants.
PER JUSTICE SHAM SUNDER(Retd), PRESIDENT
1. This appeal is directed against the order dated 7.9.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint of the complainant(now respondent) and directed the Opposite Parties (now appellants) as under ;
(i) to refund the total amount of Rs.14,92,575/- to the complainant with interest @ 9% per annum from the respective dates of deposit till payment.
(ii)To pay Rs.50,000/- as compensation for mental agony and harassment.
(iii)To pay Rs.10,000/- as costs of litigation.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.Nos.(i) & (ii) above shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.
2. The facts, in brief, are that the complainant wanted to purchase a flat for his residential purpose. He came across a scheme, floated by the Opposite Parties, for construction of flats/apartments in their project known as The Views to be built in Sector 105, Mohali by them. The total sale price of the apartment, chosen by the complainant, was Rs.51,42,750/-. The complainant was asked to pay Rs.7.00 lacs, as the booking amount, which he paid vide demand draft dated 16.8.2006. The complainant was allotted flat/unit No.C3-F04-404. The Opposite parties sent the Buyers Agreement Annexure C-2, in duplicate, alongwith letter dated 21.2.2008 Annexure C-1 requiring the complainant to sign it, and return the same to Opposite Party No.2. The complainant, thus, signed the Agreement and sent the same to opposite party No.2 vide letter dated 6.3.2008 annexure C-3. Opposite party No.2 sent back the duly executed agreement vide letter dated 19.5.2008 Annexure C-4 to the complainant. The payment was to be made as per Schedule II annexed with the agreement.
Accordingly, the complainant paid a sum of Rs.7,92,575/- to the opposite parties, vide demand draft dated 21.8.2007 towards the 1st installment. The next installment, according to the aforesaid schedule, of Rs.4,97,525/-, was payable, on the start of construction. Since the construction had not been started by that time, so the opposite parties did not make demand of the said instalment. It was stated that according to Clause 21.1 of the aforesaid agreement, the Opposite Parties were bound to handover possession of the apartment within 36 months, from the date of allotment i.e. by the end of February, 2011, but the construction work had not been started by that time. He, thus, visited the office of the opposite parties to make enquiries, about the time period, within which the construction shall be completed. However, the Opposite Parties failed to give any satisfactory reply.
It was further stated that the opposite parties had no intention to start the construction. It was further stated that even the copies of licence to start construction, approval by the Govt. authorities/MC with regard to Water and Electricity connections, NOC from the Pollution Control Board etc., were not shown to the complainant. Accordingly, the complainant requested the Opposite Parties vide letter dated 27.4.2011 to refund Rs.14,92,575/- with compound interest @ 15% per annum, but to no avail. It was further stated that by neither raising construction of the apartment, nor delivering possession of the allotted apartment, to the complaint, within the stipulated period, nor refunding the amount deposited by him, as per his request, the Opposite Parties, were not only deficient, in rendering service, but also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed by him, directing the Opposite Parties to refund Rs.14,92,575/- alongwith interest @ 15% p.a., from the date of deposit till actual realization ;
pay compensation of Rs.2 lacs for mental agony and harassment, besides Rs.35000/- as cost of litigation.
3. The Opposite Parties, in their written version, by way of affidavit of Sh.Mohit Kaura, A.G.M., pleaded that the District Forum had no pecuniary jurisdiction to entertain and decide the complaint. However, they did not dispute the factum of allotment of apartment to the complainant, payment of Rs.14,92,575/- made by him, to them, execution of Apartment Buyers Agreement between the parties and promise to deliver the possession by the end of February,2011. It was, however, stated that the construction could not be started in respect of the tower, in which the apartment was allotted to the complainant, and that was why instalment due was not demanded from him. It was further stated that once the Buyers Agreement was executed, between the parties, the complainant could not claim any relief beyond the terms and conditions of the same. It was further stated that the Opposite Parties were ready and willing to relocate the apartment, in question, to some other location, provided the complainant agreed to such new location.
It was, however, not disputed that the possession could not be delivered, to the complainant, in respect of the Apartment by the promised date. It was further stated that interest and compensation could not be granted simultaneously. It was further stated that the Opposite Parties were neither deficient, in rendering service, nor indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
8. The Counsel for the appellants, submitted that, the District Forum had no pecuniary jurisdiction to entertain and decide the complaint, as the aggregate pecuniary value of the reliefs claimed by the complainant, was more than Rs.20 lacs. The complainant claimed refund of the amount of Rs.14,92,575/- alongwith compound interest @ 15% p.a., from the date of deposit till payment, compensation in the sum of Rs.2 lacs and litigation costs to the tune of Rs.35,000/-. The question arises, as to whether, the component of interest, claimed by the complainant, could be taken into consideration, for the purpose of determination of pecuniary jurisdiction of the District Forum, or not.
In our considered opinion, as per the provisions of Section 11 of the Act, the component of interest claimed by the complainant could not be taken into consideration for determination of the pecuniary jurisdiction of the Consumer Fora. In Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, it was held as under ;
Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.
Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs.
9. Not only this, even in M/s Quality Foils India Pvt. Limited Vs. Bank of Madura Ltd. & Anr.-1996 (2) C.P.C. 55, a case decided by a four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi,it was held that the aggregate value of the goods or services and compensation claimed are required to be taken into consideration, for the purpose of determination of the pecuniary jurisdiction of a Consumer Forum. The aggregate of the amount of refund, compensation and costs claimed in this case, did not exceed Rs.20 lacs. Thus, it could not be said that the District Forum had no pecuniary jurisdiction to entertain and decide the complaint. The principle of law, laid down, in Shahbad Cooperative Sugar Mills Ltd and M/s Quality Foils India Pvt.
Limiteds cases(supra) is applicable to the facts of the instant case. The District Forum was right, in holding so. The submission of the Counsel for the appellants, being devoid of merit, must fail and the same stands rejected.
10. Reliance was placed by the Counsel for the appellants on Shri Balaji Industries Vs. United India Insurance Co. Ltd. & Anr.-II (2008) CPJ 312 (NC), a case decided by a two Member Bench of the National Consumer Disputes Redressal Commission, New Delhi. No invariable principle of law, was laid down in Shri Balaji Industries case (supra) that the component of interest was required to be taken into consideration for the determination of pecuniary jurisdiction of the Consumer Fora. Even otherwise, Shri Balaji Industries case (supra) was decided by a two Member bench of the National Consumer Disputes Redressal Commission. If any contrary principle of law, was laid down therein, then the same was not to prevail in view of the principle of law, laid down in Shahbad Cooperative Sugar Mills Ltd. and M/s Quality Foils India Pvt. Limiteds cases (supra) decided by the larger benches. No help, therefore, can be drawn by the Counsel for the appellants from Shri Balaji Industries case (supra). The submission of the Counsel for the appellants, being devoid of merit, must fail and the same stands rejected.
11. No doubt, no objection was taken, with regard to the territorial jurisdiction of the District Forum, U.T. Chandigarh, in entertaining and deciding the complaint, in the written version, yet the Counsel for the appellants raised this objection, at the time of arguments, in the appeal.
Since the question of territorial jurisdiction, goes to the root of the case and being legal in nature, is required to be decided by this Commission. Annexure C2 is the Apartment Buyers Agreement. It is evident from this document that this agreement was made at Chandigarh on 21.2.2008. Since this agreement was made at Chandigarh, it means that a part of cause of action arose to the complainant, within the territorial jurisdiction of the District Forum, at Chandigarh. The District Forum, at Chandigarh, therefore, had the territorial jurisdiction to entertain and decide the complaint.
12. Reliance, no doubt, was placed by the Counsel for the appellants on Clause 43.6 of the Apartment Buyers Agreement Annexure C2, which reads as under ;
The High Court of Punjab and Haryana at Chandigarh and the Courts subordinate thereto having territorial jurisdiction over the Apartment or the Group Housing Complex shall to the specific exclusion of all other courts, alone have the exclusive jurisdiction in all matters arising out of/touching and/or concerning this Agreement.
13. By placing reliance on the afore-extracted clause, the Counsel for the appellants, submitted that the parties, by mutual agreement, excluded the jurisdiction of all other Courts except the jurisdiction of the High Court of Punjab & Haryana at Chandigarh and the Courts subordinate thereto having territorial jurisdiction over the Apartment or the Group Housing Complex. No doubt, the apartment in question, is situated at Mohali, which falls in the State of Punjab. All the provisions of the Civil Procedure Code are not applicable to the disputes, under the Consumer Protection Act.
If by mutual agreement, the parties exclude the jurisdiction of a particular place, where a cause of action arose, then that agreement could be said to be in violation of the provisions of Section 11 of the Act. Under these circumstances Clause 43.6, being in breach of Section 11 of the Act, could not operate. No help, therefore, can be drawn, by the Counsel for the appellants, from Clause 43.6 of the Apartment Buyers Agreement, referred to above. The submission of the Counsel for the appellants, therefore, being devoid of merit, must fail and the same stands rejected.
14. It was next submitted by the Counsel for the appellants that according to Clause 43.1 of the Apartment Buyers Agreement, in case of any dispute, with regard to the property, in question, the matter shall be referred to the arbitrator under the provisions of the Arbitration and Conciliation Act,1996. . He further submitted that, as such, the District Forum had no jurisdiction to entertain and decide the complaint. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Section 3 of the Act provides an additional, speedy, inexpensive and affordable remedy to the consumers. Any arbitration clause, contained in the Agreement, executed between the parties, therefore, could not override the provisions of Section 3 of the Act. Clause 43.1 being in breach of Section 3 of the Act could not be invoked. Similar principle of law was laid down in Fair Engg. Pvt.
Ltd. & another Vs N.K.Modi (1996)6 SCC385 and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC233. In this view of the matter, the submission of the Counsel for the appellants , being devoid of merit, must fail, and same stands rejected.
15. It was next submitted by the Counsel for the appellants, that the District Forum could not grant any relief, beyond the terms and conditions, contained in the Apartment Buyers Agreement.
He further submitted that, in the Apartment Buyers Agreement, it was provided that, in case of delay, in delivery of possession of the Apartment, according to Clause 23.1, the Opposite Parties were liable to pay compensation @ Rs.5/- per sq.ft per month of the super area for the period of delay and no relief beyond the same could be granted to the complainant. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In the instant case, as per clause 23.1, the Opposite Parties were bound to hand over possession of the Apartment within 36 months from the date of allotment i.e. by the end of February,2011. Admittedly the construction of Apartment allotted to the complainant had not been completed by the Opposite Parties by that date, and, as such, the question of delivery of possession of the same to him by them, did not at all arise. Under these circumstances, the complainant could not wait for an indefinite period, for the delivery of possession of apartment, allotted to him. Thus, there was no alternative with the complainant, than to ask for the refund of amount, deposited by him with interest. The Opposite Parties could not retain the hard earned money deposited by the complainant, for an indefinite period. The Opposite Parties illegally and improperly withheld the amount deposited by the complainant. The District Forum was, thus, right in holding that since the Opposite Parties themselves breached the terms and conditions of Clause 21.1 of the Apartment Buyers Agreement, by not delivering the possession of apartment by the stipulated date, it did not lie in their mouth, that the complainant was not entitled to the refund of amount deposited by him. No evidence or circumstance was also brought, on record, to show as to what prevented the Opposite Parties, in completing the construction by the stipulated date. Under the circumstances, the Opposite Parties could not enrich themselves, at the cost of the complainant. By granting the relief of refund of the amount, deposited by the complainant, on account of breach of the provisions of Clause 21.1 of the Apartment Buyers Agreement, by the Opposite Parties, the District Forum acted in a just manner. Therefore, it could not be said that the relief of refund of amount granted to the complainant, was beyond the provisions of Apartment Buyers Agreement.
The submission of the Counsel for the appellants, therefore, being devoid of merit, must fail, and the same stands rejected.
16. It was next submitted by the Counsel for the appellants, that the interest and compensation could not be granted simultaneously. He further submitted that interest granted also amounted to compensating the complainant. The submission of the Counsel for the appellants does not appear to be correct.
The words interest and compensation are sometimes used interchangeably and, on other occasions, they have distinct connotation. Interest in general terms is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. In its narrow sense, interest is understood to mean the amount, which one has contracted to pay for use of borrowed money. In whatever category interest in a particular case may be put, it is a consideration, paid either for the use of money, or for forbearance in demanding it, after it has fallen due, and, thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable. The interest was granted, by the District Forum to the complainant, for improper and illegal retention of the amount deposited by him, with the Opposite Parties, by the latter, for a long time. Had the amount been refunded to the complainant, immediately, when the project had not taken off, for want of the requisite permissions, required for launching the same, he would have invested the same, in some business or deposited the same in the bank, as a result whereof, he would have got interest thereon. For financial loss, which the complainant incurred, the District Forum, was right, in granting interest @ 9% p.a. on the amount deposited, which could be said to be just, fair and reasonable. The submission of the Counsel for the appellants, being devoid of merit, stands rejected.
17. According to Section 14(d) of the Consumer Protection Act,1986, the Consumer Foras can grant compensation, to the complainant. The word compensation is again of very wide connotation. It has not been defined, in the Act. According to the dictionary, it means, compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.
Therefore, when the Consumer Foras have been vested with the jurisdiction to award value of goods or services and compensation, it has to be construed widely enabling the Consumer Foras, to determine compensation, for any loss or damage suffered by a consumer, which in law is otherwise, the wide meaning of compensation. The provision, in our opinion, enables a consumer to claim and empowers the Consumer Fora to redress any injustice done to him. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate a consumer for injustice suffered by him. In this case, the amount of Rs.14,92,575/- was deposited with the Opposite Parties. The complainant booked the apartment, in the hope of getting its possession within the stipulated period.
His hopes were dashed to the ground, when he saw that there was no development activity, at the spot, and even necessary permissions had not been obtained by the OPs, for carrying out construction and development before they collected money from the prospective buyers. The complainant, thus, were caused physical harassment and mental agony, by the OPs. In Paramvir Singh Vs P.H.Houses Pvt. Ltd. Revision Petition No.2779 of 2010 decided on 11.5.2011 decided by the National Consumer Disputes Redressal Commission, in similar circumstances, when possession of the plot was not given by the builder to the complainant for a long period, refund of the amount deposited by him with interest @15% and the compensation were granted. The principle of law, laid down in Paramvir Singhs case (supra) is fully applicable to the facts of the instant case. The District Forum was, thus, well within its right, to grant interest, as well as compensation simultaneously. The compensation awarded, in this case, is just, fair and reasonable.
The submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected.
18. No other point, was urged by the counsel for the Parties.
19. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
20. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld
21. Certified Copies of this order be sent to the parties, free of charge.
22. The file be consigned to the Record Room.
Sd/-
Pronounced.
(Justice Sham Sunder)(Retd) November 6,2012 President.
Sd/- (Neena Sandhu) Member *Js STATE COMMISSION (Appeal No.348 of 2012) Present: Sh.Vineet Sehgal, Advocate for the appellants.
Dated: November,2012 ORDER Vide our detailed order of the even date, recorded separately, this appeal has been dismissed, with no order as to costs.
(Neena Sandhu) (Justice Sham Sunder)(Retd) Member President