State Consumer Disputes Redressal Commission
Smt. Sudesh Bedi vs Sushma Buildtech Ltd. on 5 August, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 152 of 2016 Date of Institution 20.04.2016 Date of Decision 05.08.2016 Smt. Sudesh Bedi wife of Sh. Joginder Singh Bedi through her authorized representative, Vikas Bedi, resident of #B-XI-99, Krishna Nagar, Batala, District Gurdaspur. ....Complainant Versus 1. Sushma Buildtech Ltd., Corp Office: SCO-172-173, FF, Sector 9C, Chandigarh through its Chairman - Binder Pal Singh, resident of SCO-172-173, FF, Sector-9C, Chandigarh. 2. Sushma Buildtech Ltd., Corp Office: SCO-172-173, FF, Sector 9C, Chandigarh through its Director - Bharat Mittal, resident of SCO-172-173, FF, Sector-9C, Chandigarh. 3. Sushma Buildtech Ltd., Corp Office: SCO-172-173, FF, Sector 9C, Chandigarh through its Executive Director - Prateek Mittal, resident of SCO-172-173, FF, Sector-9C, Chandigarh. .....Opposite Parties. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER.
Present: Sh. Maninder Singh Saini, Advocate for the complainant.
Sh. Sanjeev Sharma, Advocate for the Opposite Parties.
PER DEV RAJ, MEMBER In brief, the facts of the case, are that the complainant and his wife, with a planning to move their son to Chandigarh, approached the sales representative of the Opposite Parties and on showing payment plan letter dated 17.02.2012 and price list by him, the complainant agreed to purchase a 2 room flat (hereinafter to be referred as 'unit') bearing No.D-503 measuring 1276 sq. ft., in Sushma Green Vista, Gazipur, Zirakpur, District SAS Nagar, for an amount of Rs.35,10,324/-. The possession of the said unit was to be delivered within 36 months. An agreement was also got executed between the complainant and the Opposite Parties on 24.05.2012 (Annexure C-2) but the Opposite Parties did not let the complainant read the entire Agreement. It was assured that there existed 36 months clause in the Agreement for delivering possession of the unit, in question. In the said Agreement, the Opposite Parties admitted to received an amount of Rs.9,04,698/- as earnest money. It was further stated that vide letter dated 13.07.2012 (Annexure C-3), the complainant was intimated about the allotment of the unit, in question, by Opposite Party No.2. It was further stated that out of Rs.35,10,324/-, the complainant had paid Rs.34,60,071/- towards the price of the unit in question, as depicted from letter dated 27.03.2015 (Annexure C-4). It was further stated that almost four years from the date of executing of Agreement have passed but still possession of the unit, in question, has not been delivered by the Opposite Parties to the complainant.
2. It was further stated that only idea to buy the unit, in question, was to ensure that the son of the complainant could settle in Chandigarh easily during the period of education, as he is presently studying L.L.B, while living in Chandigarh. It was further stated that since the son of the complainant would complete his studies in the month of May and at present, they are residing in a rented accommodation, they had to sign another 11 months renewal agreement before current agreement (expiring on 30.04.2016). It was further stated that the complainant and her husband are senior citizens and reside in Gurdaspur, and when their son would go back to Canada, there would be no one to reside and look after the Apartment and therefore, the purpose of buying the flat has been frustrated. It was further stated that the complainant is paying Rs.8,000/- per month as rent, as per Bank Statement (Annexure C-6).
3. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. 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 Parties, to refund Rs.34,60,071/- alongwith interest compounded quarterly @18%, from respective dates of deposits; pay Rs.1,00,000/- as compensation for physical harassment and mental agony and Rs.1,00,000/- for deficiency in service; Rs.50,000/- as litigation expenses and Rs.96,000/- for rent paid during the time of delayed possession.
4. The Opposite Parties, in their written statement, took up certain preliminary objections, to the effect, that the complainant, being investor, had purchased the flat, in question, for commercial purpose/speculation and earning profits, as and when there is escalation in the prices of real estate, as such, she would not fall within the definition of a consumer, as defined by Section 2(1)(d)(ii) of 1986 Act and that due to existence of arbitration clause No.21 in the Agreement, this Commission has no jurisdiction to try the matter and the same be referred to the sole Arbitrator.
5. On merits, it was stated that guarantee regarding delivery time of possession was never given to the complainant. It was denied that possession was to be delivered within 36 months from the date of the Agreement i.e. by 23.05.2015. It was further stated that as per clause 14(b) of the Agreement, the possession of the unit, in question, was to be delivered within 42 months i.e. by 23.11.2015 and in case of delay in handing over the possession, the complainant was entitled to penalty. It was further stated that the complainant never raised any dispute with regard to clauses of the Agreement. It was further stated that earlier allotment was made jointly in the name of the complainant and her husband vide allotment letter dated 07.04.2012 but subsequently, on request made by the husband of the complainant, the unit, in question, was transferred in the name of the complainant vide allotment letter dated 13.07.2012. It was further stated that completion certificate was received on 27.01.2016 (Annexure OP-2) and thereafter, possession was offered on 29.04.2016 (Annexure OP-4), upon completion of infrastructure/amenities as mentioned in the Agreement. It was further stated that the Opposite Parties are committed to pay the penalty to the complainant for the delay of five months in handing over of possession. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
6. The complainant filed rejoinder, wherein, she reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Parties.
7. The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.
8. The Opposite Parties, in support of their case, submitted the affidavit of Sh. Pradeep Kumar, their Director, by way of evidence, alongwith which, a number of documents were attached.
9. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
10. It is evident that in pursuance of her application dated 07.04.2012, the complainant was allotted an Apartment No.D-503, 5th Floor, in Tower D admeasuring 1276 sq. ft. (super area) in a Residential Complex known as Sushma Green Vista located at Gazipur, MC, Zirakpur, Distt. SAS Nagar (Mohali) vide allotment letter dated 13.07.2012 (Annexure C-3), basic sale price whereof was Rs.35,10,321/-. Apartment Buyer's Agreement (Annexure C-2) was executed between the parties on 24.05.2012. The complainant paid an amount of Rs.34,60,071/- to Opposite Parties, as depicted in their demand letter dated 27.03.2015 (Annexure C-4). Further as per Clause 14 (d) of the Agreement, the Opposite Parties were to give possession of the unit, in question, within a period of 36 months from the date of execution of the said Agreement plus further grace period of 6 months (totaling 42 months).
11. The first objection raised by the Opposite Parties was 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 Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Parties, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even 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 jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, 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 andNational 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, and also in the face of ratio of judgments, referred to above, the argument raised by Counsel for the Opposite Parties, stands rejected.
12. To defeat claim of the complainant, the next objection raised by the Opposite Parties was that the complainant, being investor, had purchased the unit, in question, for earning profits, as and when there is escalation in the prices of real estate, as such, she would not fall within the definition of a consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. 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. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. The complainant has specifically stated in Paras 4 and 5 of her complaint that she and her husband booked the unit, in question, just to settle their son in Chandigarh, who was pursing their LL.B, while living in Chandigarh on rent. It was further stated that the complainant and her husband are senior citizens and reside in Gurdaspur, and when their son would go back to Canada, there would be no one to reside and look after the Apartment and therefore, the purpose of buying the flat has been frustrated. 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 flat, 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. 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 Parties, in their written reply, therefore, being devoid of merit, is rejected.
13. The next question, which falls for consideration, is, as to whether there was delay in offering possession, on account of which, the complainant is entitled to refund of the amount deposited by her with interest or not. Clauses 14(d) of the Apartment Buyer's Agreement dated 24.05.2012 (Annexure C-2), being relevant, is, interalia, extracted hereunder:-
"The Developer shall endeavour to give possession of the said Unit to the Buyer within a period of Thirty Six (36) months from the date of the execution of this Agreement unless and until restrained by circumstances beyond its contemplation and control. Besides, the Developer can take six months grace period for completing and handing over the said Unit to the Buyer. The Developer shall hand over the said Unit to the Buyer for his occupation and use and subject to the Buyer having complied with all the terms and conditions of this Agreement. In the event of his failure to take over and/or occupy and use the said Unit provisionally and/originally allotted within thirty (30 days) from the date of intimation in writing by the Developer for such occupancy, the same shall lie at his risk and cost and the Buyer on the sole discretion of the Developer, shall be liable to pay compensation/holding charges @Rs.5/- per sq. ft. of the super built-up area per month as holding charges for the entire period of such delay. On the other hand, if the Developer fails to give possession of the said Unit within the aforesaid period then the Developer shall pay to the Buyer compensation/penalty @Rs.5/- per sq. ft. of the super built-up area per month for the entire period of such delay........"
No doubt, as per the afore-extracted clauses, the Opposite Parties were to give possession of the unit, in question, within a period of 42 months from the date of execution of the Agreement i.e. (36 months + 6 months grace period). Thus, by computing 42 months from the date of execution of the Agreement i.e. 24.05.2012, the possession of the unit, in question, was to be delivered by the Opposite Parties to the complainant by 23.11.2015. Admittedly, the possession of the unit, in question, was offered vide letter dated 29.04.2016 (Annexure OP-4), whereby the complainant was asked to pay the outstanding amount of Rs.2,45,845/-. 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 complainant 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. Thus, in view of law laid down in aforesaid judgments, the complainant is entitled to refund of Rs.34,60,071/-.
14. It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.34,60,071/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were 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. In view of above, the complainant is certainly entitled to get refund of the amount deposited by her to the tune of Rs.34,60,071/- alongwith interest from the respective dates of deposits till realization. Considering the fact that delay in offering possession beyond the stipulated date is of couple of months only, interest @10% p.a. simple, in our considered opinion, would be just and adequate.
15. The next question, which falls for consideration, is, as to whether, the complainant is entitled to any compensation or not. The complainant deposited her hard earned money, in the hope that she would get her son settled in Chandigarh but the very purpose of purchasing the said unit got frustrated. On account of non delivery of possession of the unit, in question, within the stipulated period, the Opposite Parties were deficient in rendering service and the complainant has suffered physical harassment and mental agony on account of the acts of omission and commission of the Opposite Parties, for which, she needs to be suitably compensated. The complainant has sought compensation for deficiency in service (Rs.1,00,000/-) and for mental agony and harassment (Rs.1,00,000/-). The delay in offering possession is of five months, which is certainly not significant and huge. Compensation in the sum of Rs.1,00,000/-, if granted, would be just and adequate, to meet the ends of justice.
16. No other point, was urged, by the Counsel for the parties.
17. For the reasons, recorded above, the complaint is partly accepted, with costs. The Opposite Parties are, jointly and severally, held liable and directed in the following manner:-
To refund the amount of Rs.34,60,071/- alongwith simple interest @10% per annum, to the complainant, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @15% per annum, instead of 10% per annum, from the date of filing the complaint, till actual payment;
To pay an amount of Rs.1,00,000/- (Rupees One Lac only), to the complainant, as compensation for deficiency in service, mental agony and physical harassment, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith interest @10% per annum from the date of filing the complaint till actual payment;
To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @10% per annum from the date of filing the complaint till actual payment.
18. 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.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion.
Pronounced August 05, 2016.
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT [DEV RAJ] MEMBER [PADMA PANDEY] MEMBER Ad