State Consumer Disputes Redressal Commission
Sh. Gurmukh Singh vs Altus Space Builders Private Limited on 8 June, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 02 of 2017 Date of Institution : 02.01.2017 Date of Decision : 08.06.2017 Sh.Gurmukh Singh son of Sh.Sohan Singh, resident of House No.343, Phase-X!, SAS Nagar, Mohali. ...... Complainant V e r s u s Altus Space Builders Pvt. Ltd., Registered Office at SCF 22, First Floor, Phase 10, SAS Nagar, Mohali, through Mr.Harpreet Singh, it's Authorized Signatory. IInd Address:- Altus Space Builders Pvt. Ltd., SCO No.846, Sector 22-A, Chandigarh. The Greater Punjab Officer's Co-operative House Building Society, H.No.175, Sector 11, Chandigarh, through its President/Authorized Representative. M/s Ajeet Associates, R/o 2741, Sector 69, SAS Nagar, Mohali, through Sh.Jatinder Pal Singh, its CEO. .... Opposite parties Argued by:- Sh.Ramnik Gupta, Advocate for the complainant. Sh.Ramandeep Singh Pandher, Advocate for the opposite parties. ================================================== Complaint case No. : 03 of 2017 Date of Institution : 02.01.2017 Date of Decision : 08.06.2017 Smt.Pratibha Dhundia wife of Sh.Surinder Dhundia, resident of House No.1138, Sector 43-B, Chandigarh. ...... Complainant V e r s u s Altus Space Builders Pvt. Ltd., Registered Office at SCF 22, First Floor, Phase 10, SAS Nagar, Mohali, through Mr.Harpreet Singh, it's Authorized Signatory. IInd Address:- Altus Space Builders Pvt. Ltd., SCO No.846, Sector 22-A, Chandigarh. The Greater Punjab Officer's Co-operative House Building Society, H.No.175, Sector 11, Chandigarh, through its President/Authorized Representative. M/s Ajeet Associates, R/o 2741, Sector 69, SAS Nagar, Mohali, through Sh.Jatinder Pal Singh, its CEO. .... Opposite parties Argued by:- Sh.Ramnik Gupta, Advocate for the complainant. Sh.Ramandeep Singh Pandher, Advocate for the opposite parties. ================================================== Complaint case No. : 42 of 2017 Date of Institution : 18.01.2017 Date of Decision : 08.06.2017 Mr.Navneet Pathak son of Late Sh.P.N. Pathak, resident of House No.2371, Sector 23-C, Chandigarh. Mrs.Meenakshi Pathak, wife of Sh.Navneet Pathak, resident of House No.2371, Sector 23-C, Chandigarh. ...... Complainants V e r s u s M/s Altus Space Builders Pvt. Ltd., SCO No.22, First Floor, Phase 10, SAS Nagar, Mohali, through its Managing Director. 2nd Address:- Altus Space Builders Pvt. Ltd., SCO No.846, Sector 22-A, Chandigarh. The Greater Punjab Officer's Co-operative House Building Society, H.No.175, Sector 11, Chandigarh, through its President/Authorized Representative. M/s Ajeet Associates, RIO 857, Sector 49-A, Chandigarh, through Sh.Jatinder Pal Singh, its CEO. 2nd Address:- M/s Ajeet Associates, SCO No.846, Sector 22-A, Chandigarh, through its CEO Sh.J.P.Singh. .... Opposite parties Argued by:- Sh.Hatinder Kansal, Advocate for the complainants. Sh.Ramandeep Singh Pandher, Advocate for the opposite parties. Complaints under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT By this order, we propose to dispose of aforesaid three consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In all the complaints, the complainants are original allottees and have sought refund of the amount deposited towards price of their respective plots/units, purchased by them, in the respective projects of the opposite parties, alongwith compensation and litigation expenses. At the time of arguments, on 01.06.2017, it was agreed by Counsel for the contesting parties, that facts involved in the above complaints, by and large, are the same, and therefore, all the three complaints can be disposed of, by passing a consolidated order.
To dictate order, facts are being taken from consumer complaint bearing no.02 of 2017 titled as Sh. Gurmukh Singh Vs. Altus Space Builders Private Limited and others. It is case of the complainant that to settle himself near Chandigarh, he opted to purchase a plot, measuring 350 square yards, vide Agreement to Sell dated 21.12.2010, Annexure C-7, in a project, launched by the opposite parties, namely 'Muirwoods Eco-City', New Chandigarh, Mullanpur, Punjab. The said agreement to sell, in respect of the plot, in question, was executed between the complainant and opposite party no.3. Plot was to be developed by opposite parties no.1 and 2. Price of the plot was fixed at Rs.9,700/- per square yards, excluding CLU, EDC, IDC etc. It was stated that the plot would be allotted in a second phase of CLU. The complainant paid an amount of Rs.7 lacs, at the time of booking of the said plot. It was further agreed that an amount of Rs.7 lacs, shall be paid, on or before 31.12.2010. It was further agreed that the complainant shall pay an amount @Rs.500/- per square yard towards CLU charges, within one month after approval of the project. On getting CLU, further amount was to be paid within one month, from the demand raised. It was further stated that, in case, of dispute, matter was to be referred to an arbitrator. Payment plan was also attached with the said Agreement, which reads thus:-
Active Amount Per SQ Yard Basic cost of plot 9700/- + CLU, EDC, IDC Booking amount Rs.1400000/-
At the time of CLU 15%-do-
Within 2 months of CLU 15%-do-
Within 4 months of CLU 15%-do-
Within 6 months of CLU 15%-do-
Within 8 months of CLU 15%-do-
Within 10 months of CLU 15%-do-
At the time of possession 10%-do-
12% interest on delayed payments Receipts of payment have been placed on record as Annexures C-8 to C-11. It was specifically stated that though not mentioned in the Agreement, however, it was promised by the opposite parties, at the time of booking that possession of a developed plot, will be handed over within a period of 36 months, from the date of execution of the Agreement to Sell dated 21.12.2010, Annexure C-7.
It is further case of the complainant that, in all, by 28.08.2015, he paid an amount of Rs.33,86,700/-, in the following manner:-
Date Cheque no.
Amount 21.12.2010 632356 700000.00 30.12.2010 632359 700000.00 29.06.2011 Cash 400000.00 29.06.2011 623370 144250.00 09.02.2012 Cash 200000.00 09.02.2012 632376 99250.00 30.12.2013 Cash 200000.00 30.12.2013 252935 500000.00 20.05.2014 Cash 170000.00 20.05.2014 252942 75000.00 28.08.2015 950597 198200.00 Total 3386700.00 It was stated that on the other hand, since receipts have been issued only for an amount of Rs.24,16,700/-, the opposite parties are guilty of adopting unfair trade practice. It was further stated that an amount of Rs.9,70,000/- was paid to opposite party no.3, in cash, against receipt, which was issued by making a writing to that effect, on the back page of the above said Agreement to Sell. It is specifically stated that as and when the amount was demanded by the opposite parties, it was deposited. In para nos.19 to 25, details of demand raised and amount paid is given. It is specifically stated that the complainant was made to make the payment, under duress, though the payments were not due, in terms of payment plan issued, at the time, when agreement to sell was signed between the parties aforesaid. Copy of demand letters have also been placed on record.
It is specific case of the complainant that after five years from the date of execution of the Agreement to Sell dated 21.12.2010, Annexure C-7, the complainant received copy of alleged Buyer's Agreement which contained detailed terms and conditions, for signing it, in the month of April 2015. Terms and conditions contained in the said agreement were draconian. In the said Agreement, the opposite parties sought further time of 36 months to hand over possession of a developed plot. Terms and conditions, which found mentioned in para 29 (a to e) were also totally in favour of the opposite parties. On receipt of Buyer's Agreement, the complainant visited the project site and was shocked to see that there was no development at all. The land was still under agriculture cultivation. An area meant for cremation of dead bodies was also situated in the project site. The complainant became apprehensive. He made a request to the opposite parties, to show necessary approvals and sanctions like CLU for second phase; approval layout plan etc. However, the opposite parties failed to show even a single document, showing approvals of their project.
It also came to the notice of the complainant that when the project was launched, even CLU was not available with the opposite parties. The project was launched contrary to the provisions of PAPRA and also conditions imposed in Letter of Intent (LOI), when CLU was granted. No exemption was available with the opposite parties, from the provisions of The Punjab Apartment and Property Regulation Act, 1995 (PAPRA), when project was sold. Left with no alternative, the complainant sent legal notice on 07.11.2016 Annexure C-22, seeking refund of amount paid, compensation etc. However, despite the fact that legal notice was received by the opposite parties, nothing was done.
By stating as above, a prayer has been made by the complainant that the opposite parties be directed to refund the amount deposited alongwith interest; pay compensation for mental agony and physical harassment; litigation expenses etc. Upon notice, reply was filed by opposite parties no.1 and 2.
Opposite parties no.1, in its written statement, pleaded that the complainant being investor, would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. He is living in his house at Mohali. To the averments made in para no.3 of the complaint, in which the complainant has given details showing when application to get permission to set up a mega residential housing project was moved and when other permissions were given to the opposite parties, the facts were not controverted. It was admitted that CLU in respect of the project, in question, i.e. in phase-II, where the plot was located, was approved only on 10.09.2012. No dispute was raised qua payments made by the complainant. It was stated that plot Buyer's Agreement was sent for signatures of the complainant in the month of April 2015, Annexure C-20. Letter dated 24.08.2015 Annexure R1/1, was also sent to the complainant, making a request to him to participate in draw of lots, for allotment of plot, however, he failed to do so. Draw of lots was conducted on 30.08.2015 and opposite party no.1 had allotted plot to 100`s of purchasers. It was admitted in para no.30, that approvals granted (CLU) were changed from time to time, on the ground of certain technical hitches. It was further admitted that in the Buyer's Agreement, promise was made to hand over possession of a developed plot, within 30 months, with extended period of six months and provision was also made to pay penal amount, in case of delay. It was specifically admitted that layout plan was cleared by the Chief Town Planner, Punjab, on 31.03.2015. Thereafter, draw of lots was conducted and plots were allotted to large number of purchasers. The remaining averments were denied being wrong. It was prayed that the complaint having no substance, be dismissed.
Opposite party no.2 in its written reply stated that it has nothing to do with the dispute, interse, between the complainant and opposite parties no.1 and 3. Opposite Party no.2 was to develop its separate chunk of land. It was stated that the complainant was not a member of its Society, and, as such, no plot was to be allotted to him. However, it was specifically admitted that there was an agreement between opposite parties no.1 and 2, regarding approval of the project, in question.
Counsel for Opposite party no.3 on 21.03.2017 stated that reply and evidence filed by opposite party no.1 is adopted by it (opposite party no.3) In the rejoinder filed, the complainant reiterated all the averments contained in the complaint, and repudiated those, contained in written version of the opposite parties.
The parties concerned, led evidence in support of their cases and also raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
After going through the evidence and record of the case, and also hearing arguments of the contesting parties, we are of the considered opinion, that this complaint deserves acceptance. It is on record that in the project launched by the opposite parties aforesaid, the complainant purchased one plot measuring 350 square yards, vide Agreement to Sell dated 21.12.2010. The said agreement was signed by opposite party no.3, on behalf of opposite parties no.1 and 2. Above fact is admitted on record. It is also admitted on record that opposite party no.3 had been selling the plots, at the instance and on behalf of opposite parties no.1 and 2. Total price of the plot was fixed at Rs.33,95,000/- i.e. @Rs.9700/- per square yard (Rs.9700 x 350 square yards), excluding CLU, EDC, IDC etc. As per payment plan, at the time of initial booking, an amount of Rs.14 lacs, was to be paid and rest of the amount was to be paid, after issuance of CLU and utpo 90% of the amount was to be paid by the end of 10 months, from the date of issuance of CLU certificate, which admittedly was issued on 25.06.2013 Annexure C-4. As per facts on record, the complainant had deposited an amount of Rs.33,86,700/-, by 28.08.2015. The first payment of Rs.7 lacs was made on 21.12.2010. However, despite the fact that substantial amount had been received by the opposite parties, Buyer's Agreement, containing detailed terms and conditions were not sent for signatures of the complainant. The facts disclosed, clearly indicate that there was a complete violation of the provisions of Section 6 of the PAPRA. The said provision reads thus:-
"6.(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908);"
Afore-extracted Section 6 of PAPRA clearly says that in no case, more than 25% of the sale consideration can be received by the project proponent, before signing the Buyer's Agreement. In the first instance, by not offering Buyer's Agreement, for signing within reasonable time, the opposite parties committed unfair trade practice and are also deficient in providing service. Under similar circumstances, it was earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-
"The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated 23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer's Agreement was not put for signing in a reasonable time, say two to three months. She continued to make payment and when Buyer's Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer's Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected".
Similar view was reiterated by this Commission in Shaminder Walia and another Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, Consumer Complaint bearing No. 918 of 2016, decided on 08.05.2017 (alongwith 05 connected complaints). As such, in the present case also, by not offering Buyer's Agreement, for signing in a reasonable time, the opposite parties committed unfair trade practice and were also deficient in providing service.
It is on record that application to get grant of package of incentives to setup mega residential housing project was cleared by the empowering Committee only on 21.06.2010 (at page 48 of the file). 'Letter of Intent' for the Grant of Special Package of Incentives under Industrial Policy 2009 (LOI) was issued in favour of opposite parties no.1 and 2, only on 25.05.2011. Numerous conditions were imposed upon opposite parties no.1 and 2, before launch and sale of the project. CLU certificate was issued for 229.77 acres of land only on 17.11.2011. Thereafter, further area was added in the above said certificate on 14.05.2012 Annexure C-3. Still, further additional area was added on 25.06.2013 Annexure C-4. The total land approved comes to 279.93 acres. However, against the said land, layout plan was approved only on 08.05.2014, qua 276.61 acres of land.
Furthermore, the Punjab Govt. issued notification dated 06.08.2014, Annexure C-6, vide which, mega housing project of opposite parties no.1 and 2, for area 219.92 acres' land was exempted from the provisions of PAPRA, except the provisions of Section 32 and Section 36 to Section 39 etc. It is apparent from the record that approval was given only for developing an area of 219.92 acres of land. Furthermore, perusal of the said notification makes it very clear that exemption given was conditional, as has been referred in para no.5 of the said notification. Besides other conditions, condition no.5 (iv to viii), reads thus:-
"(iv). The promoter shall deposit the entire amount in respect of the contribution to the Punjab Urban Development Fund, created under section 32 of the Punjab Apartment and Property Regulations Act, 1995 (Act No.14 of 1995), within a period of 30 days of the sanctioning of their layout plan.
(v). The promoter shall acquire the ownership of project land in its name including land under agreement to develop and land under agreement to sell. The plots falling under land proposed to be acquired through Govt. acquisition, plot through which revenue rasta or khali passes shall not be developed and sold till these pockets are acquired and ownership is transferred in the name of the Promoter.
(vi) The plots/land to which the access is proposed through the land to be acquired by the Government shall not be developed and sold till that land under the access is acquired and transferred in the name of the promoter and access is provided.
(vii) The promoter shall be responsible for obtaining the final NOC from Punjab Pollution Control Board.
(viii) Before starting the development of the proposed project promoter shall obtain environmental clearance from the Ministry of Environment & Forest Government of India as required under EIA notification dated 14.9.2006 as well as consent to establish (NOC) from the Punjab Pollution Control Board."
It is specifically mentioned that before starting development of the proposed project, promoter was to obtain environmental clearance from the Ministry of Environment & Forest Government of India, in terms of EIA notification dated 14.09.2006. There is nothing on record that such clearance was obtained by the opposite parties. Further, it was also mentioned that requisite amount be deposited towards Punjab Urban Development fund, within a period of 30 days, from the date of sanctioning of layout plans. No evidence has been placed on record, showing payment of the aforesaid amount. Furthermore, it is mandated that the promoter shall also be responsible for getting 'No Objection Certificate' from Punjab Pollution Control Board. No document exists on record, showing that such approval was obtained by the opposite parties.
Not only as above, in the LOI dated 25.05.2011, a specific condition no.4(iii)(d)(v), was imposed upon the opposite parties, as under:-
"4 Further the L.O.I. is subject to the following conditions as per Industrial Policy for Mega Residential Projects:-
to (ii) .......... (iii)(d) (v) The project shall not be advertised/launched and no money will be collected from general public for allotment of land/plot/flat/any space till such time the layout/zoning plans are cleared from the Competent Authority and exemption u/s 44 of PAPRA is issued by the Government."
It is mandated that the project can only be launched when layout/zoning plans are cleared from the Competent Authorities and exemption is granted from operation of the provisions of PAPRA, by the Government concerned. However, on the other hand, it is on record that layout plan was approved on 08.05.2014, but the plot was sold vide Agreement to Sell dated 21.12.2010. Above facts clearly indicate that when the project was launched and sold, not even a single permission was available with the opposite parties. Nothing has been said to the contrary, in the written statement filed by opposite parties no.1 and 2, adopted by opposite party no.3 also. Not even a single document has been placed on record to controvert the plea taken by the complainant, qua above said fact.
Above action taken by the opposite parties, shows scant regard to the rules and regulations issued by the Govt. and provisions of law. The opposite parties were out to fleece the poor consumers. Earlier also, similar controversy came up for consideration, before this Commission in Kamal Anand Vs. M/s Altus Space Builders Pvt. Ltd. and ors. Consumer Complaint No.316 of 2015, decided on 24.05.2016. Noting facts, as referred to above, it was observed as under:-
"The next question, that falls for consideration, is, as to whether the Opposite Parties are at fault for not handing over possession of the unit to the complainant after receipt of huge amount from her. The answer, to this question, is in the affirmative. It is, no doubt, true that the complainant booked a residential plot of 350 sq. yards in the project of the Opposite Parties and paid the huge amount i.e. approximately Rs.58 lacs to them. It is also true that after booking of the unit, Agreement to Sell was also executed between M/s Ajeet Associates (Opposite Party No.2) and the complainant on 19.09.2011 (Annexure C-4 colly.). At that time, when the Agreement to Sell was executed, the complainant already paid the amount of Rs.10,50,000/- to Opposite Party No.1 vide receipt (Annexure C-2) and Rs.7 lacs to Opposite Party No.3 vide receipt (Annexure C-3). Strangely, in the Agreement to Sell, not even a single line has been produced by the Opposite Parties, within which period possession is to be given. Thereafter, the complainant paid the amount of Rs.10,50,000/- on 02.11.2011, Rs.10,50,000/- on 06.12.2011, Rs.7,70,000/- on 22.05.2012 and Rs.2,45,000/- on 24.03.2014. After payment of the aforesaid amounts, neither any Plot Buyer's Agreement was signed from the complainant nor any plot number was provided to her. Thereafter, the complainant received a copy of the Plot Buyer's Agreement in February, 2015 from the Company but she refused to sign the same, after reading the terms of the Agreement, especially article No.5, in which, the Opposite Parties mentioned to deliver possession of the unit is to be given within a period of 30 months (extended by six months) i.e. maximum period of 36 months. It means according to the Company, possession of the unit is to be delivered to the complainant in the year 2018. It is true that in the proposal form (Annexure C-1) and Agreement to Sell (Annexure C-4 colly.) no such promise to hand over possession of the unit within 36 months from 19.09.2011 was mentioned by the Company. A bare perusal of Agreement to Sell clearly revealed that the terms and conditions incorporated therein by the Opposite Parties are only to their own taste and benefit and befooled the consumers especially when such like clause was mentioned i.e. the complainant agreed to sign and execute the allotment letter or the Buyer's Agreement on the company's standard format as and when desire by the Company. It is pertinent to note that when the complainant visited the site of the Company, she found that there was nothing on the site. So, it is clearly proved that the deficiency in service on the part of the Opposite Parties is writ large because the unit was booked by the complainant in the year 2011 and Agreement to Sell was entered on 19.09.2011, without mentioning any time for delivery of possession, but after about four years of the Agreement to Sell, the complainant received the Plot Buyer's Agreement with the article that possession is to be delivered within a period of 36 months from the year 2015 i.e. to be given in the year 2018. So, it is clearly proved that the Company enjoyed the money deposited by the complainant and was fetching interest on the huge amount deposited by her, without handing over physical possession of the unit to her nor refunded the amount to her, which certainly amounted to deficiency in service and indulged into unfair trade practice on the part of the Opposite Parties."
As such, the opposite parties are guilty of launching the project, in question, contrary to the provisions of law; PAPRA and also the LOI issued.
It is contended by the opposite parties that now development at the project is complete and the opposite parties have applied for getting partial completion certificate on 14.12.2016. Be that as it may, once we have come to the conclusion that the plot was sold without even a single permission in their hands, by the opposite parties, no relief can be given to them, on this score. The complainant/ consumers cannot be forced to purchase a plot, after lapse of reasonable time. It is specifically stated in the complaint that when first payment was made, in the year 2010, there was a promise to hand over possession within 36 months therefrom. Thereafter, by offering one sided terms and conditions, further providing possession after 36 months, from the date of signing of the Buyer's Agreement (not signed in the present complaint), which was sent in the year 2015, the opposite parties have indulged into unfair trade practice. The complainant was justified in not signing the said Agreement, as it was totally in favour of the opposite parties. It is not in dispute that the opposite parties have failed to deliver possession of the plot, in question, despite the fact that the same was booked in the year 2010 and now it is June 2017. The act and conduct of the opposite parties, referred to above, is vivid and glaring, which certainly entitles the complainants, in all the three complaints, to get refund of the amount deposited.
To defeat claim of the complainant, an objection was raised by the opposite parties, that the complainant is an investor, therefore, he would not fall within the definition of consumer, as defined by Section 2 (1) (d) of the Act. It may be stated here that there is nothing, on record to show that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. On the other hand, the complainant, in para no.1 of his complaint, supported by his affidavit, has clearly stated that the plot, in question, was purchased by him, for his personal use. 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. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, being devoid of merit, is rejected.
It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainant, if yes, to what extent. It is not in dispute that an amount of Rs.33,86,700/-, was paid by the complainant by 28.08.2015, without getting anything, in lieu thereof. The said amount has been used by the opposite parties, for their own benefit. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). The complainant is certainly entitled to get refund of the amount deposited by him, alongwith interest, from the respective dates of deposits, till realization.
At the time of arguments, it was also argued by Counsel for the opposite parties that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication. We are not going to agree with the argument raised. This question has already been elaborately dealt with by this Commission in case titled ' Sarbjit Singh Vs. Puma Realtors Private Limited', IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-
25. The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.
26. To decide above said question, it is necessary to reproduce the provisions of Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;
"3. Act not in derogation of any other law.--
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
27. It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:-
"8. Power to refer parties to arbitration where there is an arbitration agreement.--
(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made."
28. Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6 SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, ( Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.
29. In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-
"8. Power to refer parties to arbitration where there is an arbitration agreement.--
(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists."
30. Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.
31. Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case, some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.
32. We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act, a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of Arbitrator's fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.
33. The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the plot, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.
34. Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-
"In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon'ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986."
35. In view of the above, the plea taken by the opposite party, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected."
In view of the above, argument raised by Counsel for the opposite parties, in this regard, being devoid of merit is rejected.
As far as the liability of opposite party no.2, is concerned, it may be stated here that the documents placed on record, clearly proves that the project was a joint venture of opposite parties no.1 and 2 including opposite party no.3. The said fact is reflected from the documents like LOI dated 25.05.2011 (at page 48); Change of Land Use Certificates dated 17.11.2011, 14.05.2012 and 25.06.2013 (at pages 56, 58 and 60); Layout plan dated 08.05.2014 (at page 63). Not only as above, even in the letter dated 20.02.2011 Annexure C-12, sent by opposite party no.1 to the complainant, it has been clearly admitted that opposite party no.1 is the JV partner of opposite party no.2. Once it is so, opposite party no.2 is equally liable alongwith opposite parties no.1 and 3, to refund the amount paid by them (complainants). As such, the plea taken by opposite party no.2, to the effect that it has nothing to do with the interse dispute between the complainant and opposite parties no.1 and 3, is liable to be rejected.
No other point, was urged, by Counsel for the contesting parties, in all three complaints.
For the reasons recorded above, all the complaints are partly accepted, with costs, in the following manner:-
In Consumer complaint bearing no. 02 of 2017 titled as Sh.Gurmukh Singh Vs. Altus Space Builders Private Limited and others, the opposite parties jointly and severally are directed as under:-
To refund the amount of Rs.33,86,700/- to the complainant, alongwith interest @15% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainant.
In Consumer complaint bearing no. 03 of 2017 titled as Smt.Pratibha Dhundia Vs. Altus Space Builders Private Limited and others, the opposite parties jointly and severally are directed as under:-
To refund the amount of Rs.17,62,500/- to the complainant, alongwith interest @15% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.22,000/- to the complainant.
In Consumer complaint bearing no. 42 of 2017 titled as Mr.Navneet Pathak and another Vs. M/s Altus Space Builders Private Limited and others, the opposite parties jointly and severally are directed as under:-
To refund the amount of Rs.34,40,000/- to the complainants, alongwith interest @15% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii), in all the complaints, shall be made, within a period of 02 (two) months, respectively, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a., instead of @15%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), in all the complaints, from the respective dates of filing of complaint, till realization.
However, it is made clear that, if the complainant(s) in any of the above complaints, have availed loan facility from any banking or financial institution, for making payment towards the said plots/units, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
Certified copy of this order, be placed in connected complaint files, referred to above.
Certified copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
08.06.2017 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg.