State Consumer Disputes Redressal Commission
Asha Kumar vs M/S Ambika Realcon Developers Private ... on 18 September, 2024
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STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. : 133 of 2023
Date of Institution : 26.12.2023
Date of Decision : 18.09.2024
Asha Kumar wife of Sh. Naresh Chander Kumar, aged about 64 years,
resident of House No. 90, Sector 11, Panchkula.
...Complainant
Versus
1. M/s Ambika Realcon Developers Private Limited, Corporate Office: SCO
18- 19, 1st Floor, Sector 9-D, Chandigarh-160009 through its Director-
Sh. Ritesh Sehgal.
2. M/s Ambika Realcon Developers Private Limited, Regd. Office: Building
No. 251, Glatt Building, 2nd Floor, Behind Modi Floor Mill, Okhla, Phase-
III, New Delhi-110020 through its Managing Director.
3. M/s Ambika Realcon Developers Private Limited, Sales Office: Florence
Part VIII, Dhodhe Majra, Mullanpur, New Chandigarh through its Sales
Manager
.....Opposite Parties
BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
MRS. PADMA PANDEY , MEMBER
Present:- Sh.Devinder Kumar, Advocate for the complainant.
Sh.Manpreet Singh Longia, Advocate for the opposite parties (on VC).
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT Factual scenario:-
It is the case of the complainant that despite the fact that substantial amount of Rs.64,71,040/- against total sale consideration of Rs.60,21,835/- stood paid by her to the opposite parties, against flat bearing no.FP/ASTER/C/1403, FLORENCE Park, measuring super area/carpet area approximately 2065 square feet/1402 square feet, New Chandigarh, SAS Nagar, Mohali, starting from 03.03.2022 to 26.10.2023, yet, physical possession there was never delivered by the committed date i.e. 31.12.2022, as envisaged under clause 7.1 of the agreement, Annexure C-7.
It has been stated that the original copy of the agreement was never provided by the opposite parties, despite making repeated requests. It has been averred that on the assurance of the opposite parties that possession of the 2 unit will be delivered shortly, the complainant kept house hold articles therein. However, thereafter, instead of delivering possession of the unit, the opposite parties issued letter dated 06.10.2023, Annexure C-9 and asked the complainant to deposit an amount of Rs.80,823/- on account of increase in area of the unit in question and later on got deposited an amount of Rs.58,973/- on 26.10.2023 through cheque dated 05.11.2023. Even the date of possession of the unit stood changed by the opposite parties from 31.12.2022 to 31.03.2023. Thereafter, the opposite parties forced the complainant to sign another agreement, Annexure C-12 mentioning the date of possession therein as 31.12.2023 which was challenged by the complainant vide letter dated 18.11.2023, Annexure C-13 but to no avail. Hence this consumer complaint.
Written version of the opposite parties:-
2. The claim of the complainant has been contested by the opposite parties by way of filing written version wherein number of objections/pleas were taken as under:-
(i). that the complainant has concealed material facts from this Commission;
(ii). that in the face of arbitration clause contained in the agreement, this case needs to be referred to arbitration;
(iii). this Commission is not vested with territorial jurisdiction to entertain and decide this complaint;
(iv). that the complainant is not a consumer but investor:
(v). that complicated questions of facts and law are involved in this case and as such not maintainable before this Commission under summary proceedings;
(vi). that the present complaint is premature;
(vii). that the complainant herself wanted semi-furnished unit, so that she could furnish the same as per own choice and style;
(viii). that the complainant had kept her belongings in the unit in question, which fact has been admitted by her in her complaint;
(ix). that possession of the unit in question stood taken over by the complainant on 26.10.2023
(x). that since there was a typographical error regarding date of handing over possession of the unit in question in the first 3 agreement, therefore, new agreement, Annexure R-1/4 was handed over to the complainant on 26.10.2023 but she failed to sign and handover back the same;
(xi). that because the agreement, Annexure C-7 did not bear the signatures of the opposite parties, therefore, it has no value in the eyes of law;
(xii). that the complainant in her letter dated 26.10.2023 has shown her satisfaction regarding facilities, additional area of the unit in question etc;
(xiii). that no illegal amount under any head has been charged by the opposite parties;
3. On merits, the fact that the unit in question was purchased by the complainant against which she had paid total amount of Rs.64,71,040/- has not been disputed. Remaining averments of the complaint have been denied being wrong.
Rejoinder filed by the complainant:-
4. In the rejoinder filed, the complainant reiterated all the averments contained in her complaint and controverted those contained in the written reply of the opposite parties.
5. The contesting parties led evidence in support of their case and also filed their respective written arguments/submissions.
6. We have heard the contesting parties and have gone through the record of the case, including the written arguments/submissions filed by the parties concerned, very carefully.
Observations/findings of this Commission:-
Arbitration:-
7. The objection regarding the applicability of arbitration in consumer disputes has already been conclusively resolved by a larger Bench of the Hon'ble National Commission in the case of Aftab Singh vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015. In this case, through an order dated 13.07.2017, the Hon'ble National Commission held that the existence of an arbitration clause in agreements or contracts between a buyer and a builder cannot curtail or exclude the jurisdiction of Consumer Fora. This position stands firm despite the amendments made to Section 8 of the Arbitration and Conciliation Act, 1996, which ordinarily 4 mandates referral to arbitration where an agreement to that effect exists. Moreover, the builder's subsequent attempts to challenge this ruling were unsuccessful. Civil Appeal Nos. 23512-23513 of 2017, filed by the builder before the Hon'ble Supreme Court of India, were dismissed by the Supreme Court in an order dated 13.02.2018. The builder's Review Petition (C) Nos. 2629-2630 of 2018 was also dismissed by the Hon'ble Supreme Court on 10.12.2018. Therefore, the objection based on the arbitration clause stands rejected, as it has been conclusively settled that such clauses do not preclude the jurisdiction of Consumer Commission in disputes between consumers and builders.
Territorial jurisdiction:-
8. Now coming to the objection taken by the opposite parties with regard to territorial jurisdiction. It may be stated here that Section 47 (4) of Consumer Protection Act, 2019 which is pari materia to Section 20 of the Code of Civil Procedure (CPC) provides as under:-
".....47. (4) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided in such case, the permission of the State Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain...."
It is significant to mention here that in the present case, it is clearly coming out from the record that almost all the correspondence has taken place in the matter, with corporate and sales office of the opposite parties at SCO No.18-19, First Floor, Sector 9D, Chandigarh and this address is found mentioned on following documents:-
(i). Payment receipts, Annexure C-3 to C-6.
(ii). Agreement for sale, Annexure C-7.
(iii). Welcome letter dated 06.10.2023, Annexure C-9.
Not only as above, even the address of the company in clause 30 of the agreement, Annexure C-7, has been written as SCO No.18-19, First Floor, 5 Sector 9D, Chandigarh. Under these circumstances, it can easily be said that the opposite parties are ordinarily residing and carrying on business from their branch office at Chandigarh and are personally working for gain thereat. As such, this Commission at Chandigarh has territorial jurisdiction to entertain this complaint. Objection taken by the opposite parties in this regard stands rejected.
Complainant is consumer:-
9. Addressing the objection raised by the opposite parties that the complainant does not qualify as a "consumer," it is pertinent to note that the opposite parties have failed to provide any substantial or convincing evidence to support this claim. The burden of proof lies on the opposite parties to demonstrate that the unit in question was purchased by the complainant for the purpose of resale or profit, i.e., for commercial purposes such as the "purchase and sale of units." However, the opposite parties have not successfully discharged this burden. In this case, the complainant is still actively seeking possession of the unit, which further supports the fact that the purchase was for personal use, and not for commercial gain. Therefore, the complainant squarely falls within the definition of a "consumer" as outlined in the Consumer Protection Act. This conclusion is consistent with the observations made by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31, where it was held that mere allegations of commercial intent are insufficient without supporting evidence. As a result, the objection raised by the opposite parties regarding the complainant's status as a consumer is hereby rejected.
Possession of the unit:-
10. There is no dispute with regard to purchase of the unit by the complainant, in the project of the opposite parties as per the details given above. There is also no dispute with regard to the fact that the entire sale consideration stood received by the opposite parties from the complainant. It is also coming out from clause 7.1 of the agreement, Annexure C-7 that possession of the unit in question was to be delivered on or before 31.03.2023. However, it is an admitted fact that possession of the unit has been delivered to the complainant on 26.10.2023. It is also coming out from the record that the complainant herself vide letter dated 26.10.2023, Annexure R-1/3 had sought possession of the incomplete unit, on the ground that she wished to get done interior and fitouts therein. In second last para of this letter, the complainant has agreed to take possession of the 6 unit in question in the absence of occupation and completion certificates and has assured that she will not take any legal action in that regard, if possession of the unit is delivered to her. Accordingly, possession of the said unit was delivered to her on 26.10.2023 and during pendency of this complaint i.e. on 14.08.2024, she has taken over possession certificate stating therein that she has taken physical possession of the unit in question on 26.10.2023. There is therefore delay in delivery of possession of the unit in question to the complainant by the opposite parties, for which she needs to be suitably compensated.
Compensation for the period of delay:-
11. As has been held above, though possession of the unit in question was to be delivered on or before 31.03.2023, yet the same stood delivered on 26.10.2023. Under these circumstances, we are of the considered view that the complainant is entitled to get delay compensation by way of interest starting from due date of possession i.e. from 31.03.2023 till 25.10.2023. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil Appeal No. 11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon'ble Supreme Court of India has upheld the order of the Hon'ble National Commission awarding interest @9% p.a. for the period of delay in delivery of possession of the units. Thereafter also, similar rate of interest i.e. 9% p.a. was granted by the Hon'ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019, by making reference to the earlier order passed by it in Himanshu Arora's case (supra). In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon'ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon'ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. As such, in the present case also, the complainant deserves just and fair compensation for the period of delay in delivery of possession to her by the opposite parties. In our considered opinion, if we grant interest @9% p.a. to the complainant on the entire amount deposited by her, from 31.03.2023 till 25.10.2023 that will meet the ends of justice.
712. For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties jointly and severally are directed as under:-
(i). To pay to the complainant, compensation by way of interest @9% p.a. from 31.03.2023 till 25.10.2023 on the entire deposited sale consideration towards the unit in question, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount of compensation from 31.03.2023 till 25.10.2023 aforesaid shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant.
(ii). To pay to the complainant compensation to the tune of Rs.75,000/- for causing her mental agony & harassment, deficiency in providing and also cost of litigation to the tune of Rs.35,000/- to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
13. All pending applications, if any, in this complaint, stand disposed of accordingly.
14. Certified copies of this order be sent to the parties, free of charge, forthwith
15. The file be consigned to Record Room, after completion.
Pronounced 18.09.2024 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Rg.
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