State Consumer Disputes Redressal Commission
Anju Gupta vs M/S Tdi Infratech Limited on 30 April, 2019
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 853 of 2017 Date of Institution : 20.12.2017 Date of Decision : 30.04.2019 Anju Gupta wife of Shri Varinder Kumar Gupta, aged 51 years, resident of House No.31, Shivalik Enclave, Manimajra, U.T., Chandigarh. ......Complainant. Versus 1. M/s TDI Infratech Limited (formerly knonw as Taneja Developers and Infrastructure Limited) through its Director, having its office at SCO 51-52, Sector 118, Chandigarh Kharar Road NH 21, TDI City, Mohali, Punjab. Email: [email protected]. 2. M/s ICS Hotels Pvt. Ltd., having its registered office at 9, KG Marg, New Delhi - 01 through its Director or authorized Representative. 3. Ravinder Kumar Taneja, Director of M/s TDI Infratech Limited having DIN 00013172, 10 Shaheed Bhagat Singh Marg, New Delhi - 01. 4. Ved Prakash, Director of M/s ICS Hotels Pvt. Ltd., having DIN 00016330, 9, Kasturba Gandhi Marg, New Delhi. .....Opposite Parties. 5. Rajesh Goyal S/o Sh. Ganpati Rai R/o #1056, Sector 15, Panchkula. ....Performa Opposite Party. Complaint under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MRS. PADMA PANDEY, MEMBER
MR. RAJESH K. ARYA, MEMBER Argued by:
Sh. T. S. Khaira, Advocate for the complainant.
Sh. Puneet Tuli, Advocate for Opposite Parties No.1 to 4.
Sh. Devinder Kumar, Advocate, proxy for Sh. Ashok Kumar, Advocate for Opposite Party No.5.
PER RAJESH K. ARYA, MEMBER The facts, in brief, are that initially Shop bearing No.FF-16 on First Floor in TDI Mall, Sector 17-A, Chandigarh was allotted to Opposite Party No.5 for total sale consideration of Rs.45 Lakhs. Possession of the said unit was to be delivered on 31.03.2007 with a grace period of six months i.e. by 30.09.2007. Opposite Party No.5 paid an amount of Rs.35 Lakhs as reflected in the Buyer's Agreement executed between Opposite Parties No.1 & 2 and Opposite Party No.5 on 19.06.2006 (Annexure C-1). Thereafter, the said unit was purchased by the complainant from Opposite Party No.5 vide sale agreement dated 29.09.2008 (Annexure C-2) and the total sale consideration was paid by the complainant to Opposite Party No.5. Sale/transfer of unit, in question, was endorsed vide endorsement dated 03.11.2008 (Annexure C-3). An affidavit dated 01.11.2008 (Annexure C-4) was also executed by Opposite Party No.5 in favour of the complainant. Pending sale consideration of Rs.10 Lakhs was paid by Opposite Party No.5 to Opposite Party No.1 vide cheque dated 15.11.2008 (Annexure C-4).
2. However, the opposite parties No.1 to 4 in order to wriggle out of their liability of giving interest on the payment already made on account of their failure to complete the project in time, issued a cheque to Opposite Party No.5 as compensation for delayed possession. Opposite Party No.5 then issued a cheque for an amount of Rs.1,84,767/- in favour of the complainant on 26.03.2010 after deducting charges for delayed possession till such time the sale agreement between the complainant and Opposite Party No.5 was not executed. Opposite Party No.2 issued another cheque dated 08.12.2012 for an amount of Rs.2,11,500/- for delayed possession. However, they unilaterally changed unit number from FF-16 to FF-15 and vide letter dated 17.06.2015 (Annexure C-8) informed the complainant that Chandigarh Administration is in the process of issuance of final Occupation Certificate in a short duration of period and possession would be handed over to the complainant for undertaking the work of fit-outs so that immediately after issuance of final occupation certificate, the complainant would be able to start the business. The complainant relied to the said letter issued by Opposite Party No.1 on 16.07.2015 (Annexure C-9) and showed her willingness to take over possession only after obtaining occupation certificate from Chandigarh Administration.
3. Vide letter dated 16.11.2015 (Annexure C-10), the complainant requested Opposite Party No.2 to make payment for delayed possession in accordance with earlier two payments for a period of 6 months each. Opposite Party No.1 vide letter dated 18.01.2016 (Annexure C-11) issued possession of the unit, in question and the complainant was coerced to sign maintenance agreement dated 05.01.2016 (Annexure C-16). An undated addendum agreement (Annexure C-13) was also sent alongwith the possession letter, wherein, it was wrongly mentioned that the buyer had agreed to invest its money and entered into Buyer's Agreement dated 19.06.2006 for the shop; numeric number of the shop was changed from FF-16 to FF-15; size of the shop was altered from 528.75 sq. ft. super area to 518.37 sq. Ft. super area; accounts as per the decreased area had been adjusted and no claim remained pending towards each other, which was factually incorrect. The complainant vide letter dated 15.02.2016 (Annexure C-14) put her grievance before the Opposite Parties qua above issues. Opposite Party No.1 instead of reply to the above letter, issued a letter dated 22.03.2016 again for handing over of possession of the unit. As per the complainant, there was delay of 102 months in offer the possession as the promised date of possession was 30.09.2007 and possession was actually offered to be handed over on 22.03.2016. The complainant had to suffer irreparable loss in shape of loss of livelihood due to the delay in handing over the possession of the said shop. It was further stated that till date, the opposite parties have not completed the project as per the assurance. The complainant with the bonafide intention of taking the possession of the said shop wrote letter dated 23.10.2017 (Annexure C-19), which was never replied. Reminder letter dated 08.11.2017 was sent by the complainant but to no avail.
4. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also, 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 Opposite Parties No.1 to 4 to execute the sale deed/conveyance deed in favour of the complainant; provide the details of the common area & facilities and the breakup of super area and deviation upon carpet area of the shop and project in question; pay Rs.34,28,106/- calculated as interest @11% p.a. on Rs.45 Lakhs for 102 months from the committed date of possession till offer of actual possession after receipt of completion certificate; refund the excess amount charged after reduction of actual area of the shop amounting to Rs.6,70,212.76; award Rs.3 Lakhs as compensation for harassment and mental agony besides Rs.50,000/- as litigation expenses.
5. Opposite Parties No.1 to 4, in their written statement stated that as per the terms of the Agreement dated 19.06.2006, layout and area of the unit was tentative and the final area was to be measured on completion of the building and thereafter the price of differential area was to be settled. It was further stated that after receiving the occupancy certificate, possession of the unit was finally offered on 18.01.2016. It was further stated that an addendum to Agreement was executed between the parties settling the terms as to increase/decrease in the Super Area of the Unit and also regarding the claims pending between the parties as on that date. It was further stated that in terms of Gazettee Notification dated 17.11.2000 (Annexure R-1) of Chandigarh Administration, Opposite Party No.2 - ICS Hotels Pvt. Ltd. who was owner of site of Jagat Cinema entered into a Development Agreement with Opposite Party No.1 and vide said agreement, Opposite Parties No.1 & 2 agreed for construction of said in a state of the art Shopping-cum-Multiplex comprising Lower Ground Floor, Ground Floor, First Floor and Second Floor with due approvals/permissions from the concerned authorities after demolishing the existing building and super structures on the said site.
6. It was further stated that approval to convert Jagat Cinema into a Multiplex was accorded on 15.06.2005 (Annexure R-4). It was admitted that after issuance of above letter dated 15.06.2005, an agreement was executed on 19.06.2006 (Annexure R-5) with Sh. Rajesh Goyal with regard to sale of a commercial unit in TDI Mall. It was further stated that Chandigarh Administration issued another notification in 2006 and wanted to realize a sum of Rs.2,56,47,339/- as conversion charges as per policy, which the ICS Hotels Pvt. Ltd. paid under protest subject to outcome of request for waiver of the same. Permission to erect/re-erect/add/alter the building, in question, was accorded on 04.04.2006 (Annexure R-9). On 19.04.2006, demarcation was done and permission for water installations and starting construction of the building was given (Annexure R-11). The Company pursued the construction work and brought the building up-to DPC level even before 09.02.2007.
7. It was further stated that Chandigarh Administration issued new notification dated 25.04.2007 and carved out a new scheme known as "The Setting up of Multiplex Theatres and Conversion of Existing Cinemas into Multiplex Theatres Scheme, 2007", which was sought to be made applicable with retrospective effect though the concept plans had already been approved under the "2000 Notification" and building had been raised up-to DPC level. It was further stated that by the month of August 2008, the construction of the multiplex was complete. It was further stated that the Company issued letters to various agreement holders and they were given 60 days time to carry out the work of fit-outs and interiors. It was further stated that before fit out work was carried, the Estate Officer vide letter dated 01.10.2008 (Annexure R-16) wrote to Municipal Commissioner, Chandigarh with regard to parking area of the multiplex. It was further stated that ignoring all representations submitted from time to time by ICS Hotels Pvt. Ltd. and without deciding them, the Chandigarh Administration slapped a show cause notice dated 17.08.2010 alleging minor violations in the building, which was contested and ultimately said notice was wounded up after charging compounding fee on 25.02.2011.
8. It was further stated that after going through aforesaid cumbersome procedure of getting approvals and sanctions from various authorities, the Company ultimately remained successful to get the building plans finally approved, which was also subject to a No Objection Certificate from Chief Fire Officer, Chandigarh (Letter dated 25.04.2011 is Annexure R-17). On refusal to give No Objection Certificate vide letter dated 26.03.2012, the Company filed appeal against the said rejection, which was allowed on 28.12.2012 and NOC was issued on 02.09.2013 and ultimately on that day, letter of sanction to building plan became complete. It was further stated that during all this process, the Ministry of Home Affairs, Government of India accorded approval on 23.12.2011 for constitution of Chandigarh Heritage Conservation Committee (Annexure R-18). It was further stated that thereafter only, the whole of the area of Sector 17, Chandigarh including the buildings was declared Heritage area. It was further stated that after examining all the technical issues, the Finance Secretary, the Chief Architect and other members took a concrete decision on 07.08.2014 and issued instructions/guidelines to the Company vide memo dated 08.08.2014 to bring the buildings on the parameters of the norms followed by the Chandigarh Heritage Conservation Committee.
9. It was further stated that the Chandigarh Administration issued the Occupation Certificate for TDI Mall vide letter dated 12.01.2016 and the possession of the unit was finally offered on 18.01.2016. It was further stated that the complainants were asked to visit the site and complete the formalities for handing over the possession, who visited the site. It was further mentioned that the super area of each and every unit allotted to various persons, including that of the complainant, were measured and the account with regard to differential area was adjusted with all the allottees as also in the case of the complainant vide addendum agreement accordingly. It was further stated that all the claims of differences of the complainant were settled.
10. It was further stated that Opposite Parties No.1 to 4 were neither deficient, in rendering service nor did they indulge into unfair trade practice. The remaining averments, made in the complaint, were denied.
11. Opposite Party No.5, in its written statement, stated that the complainant purchased the said shop from Opposite Party No.1 and the said transfer was recognized and endorsed by Opposite Parties No.1 and 2. It was further stated that after purchase of the said shop by the complainant, Opposite Party No.5 has no concern with the said shop. It was further stated that buyer agreement dated 19.06.2006 was executed between Opposite Parties No.1 & 2 and Opposite Party No.5 and after its purchase by the complainant, the said terms and conditions lie upon the complainant. It was further stated that Opposite Party No.5 had paid the amount of Rs.35 Lakhs to Opposite Party No.1 and an agreement of sale was entred into between the complainant and Opposite Party No.5 on 29.09.2008 for the purchase of the said shop. It was further stated that there was no dispute between the complainant and Opposite Party No.5 in respect of said shop.
12. It was further stated that a cheque of Rs.1,84,767/- was duly handed over to the complainant on 26.03.2010, which was duly encahsed by the complainant. It was further stated that the complainant has not claimed any relief against Opposite Party No.5 and as such, Opposite Party No.5 has no concern with the dispute between the complainant and Opposite Parties No.1 to 4. It was further stated that Opposite Party No.5 was neither deficient, in rendering service nor did he indulge into unfair trade practice. The remaining averments, made in the complaint, were denied.
13. The complainant filed rejoinder wherein she reiterated all the averments contained in the complaint and repudiated those contained in the written version of Opposite Parties No.1 to 4.
14. The parties led evidence in support of their case.
15. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
16. During the course of arguments, jurisdiction of this Commission was challenged by the Counsel for Opposite Parties No.1 to 4, by stating that Real Estate (Regulation and Development) Act, 2016 (in short, the RERA) being a special statute took precedence over the Act, 1986. We are not inclined to accept this argument. At the time of arguments, it is very fairly admitted by Counsel for the contesting parties, that the provisions of RERA are prospective in nature. It was also so said by the High Court of Bombay in the case of NeelKamal Realtors Suburban Pvt. Ltd. and anr. Vs. Union of India and ors. 2018 (1) R.C.R. (Civil) 298. It is on record that under the RERA, opposite parties no.1 and 2 got themselves registered their project, only on 15.09.2017. It is also on record that some of the provisions of RERA came into operation on 01.05.2016 and even the remaining of it, in May 2017. In all, the grievance has been raised by the complainants qua wrongful act/mistake done leading to deficiency in providing service and adoption of unfair trade practice, in selling the project by opposite parties no.1 and 2 without sanctions/approvals, before coming into existence of RERA. Reading of the provisions of Section 88 of RERA makes it very clear that the same are in addition and not in derogation of the provisions of any other law for the time being in force. Section 79 of the RERA further makes it very clear that jurisdiction of only the Civil Court to entertain a suit or proceedings qua action taken as per the provisions of the said Act, is barred.
17. It may be stated here that the Consumer Foras under the Act, 1986 despite having some trappings of a Civil Court are not the Civil Courts. As such, the jurisdiction of the Consumer Foras is not debarred, to entertain the complaints filed by consumers, alleging deficiency in providing service, negligence and adoption of unfair trade practice against Opposite Parties No.1 to 4. Intention of the framers of law has been made clear by the concerned Department i.e. Ministry of Housing and Urban Property Alleviation, Government of India in its website www.mygov.in/group/ministry-housing-and-urban-poverty-alleviation. Under Frequently Asked Questions (FAQ), at Sr.nos. 85 and 86, it was observed as under:-
"85. Are the civil courts and consumer forums barred from entertaining disputes under the Act?
As per section 79 of the Act civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under section 12, 14, 18 and section 19, from the consumer forum and file it with the adjudicating officer appointed under the Act.
86. Can a complainant approach both the Regulatory Authority / adjudicating officer and the consumer forums for the same disputes?
The laws of the country do not permit forum shopping, thus, an aggrieved can only approach one of the two for disputes over the same matter."
18. It was also so said by the State of Punjab in its Official Website Portal rera.punjab.gov.in. The above fact clearly indicates that in the face of provisions of the RERA, any action taken under the provisions of Act 1986 is not debarred.
19. Be that as it may, a similar question came up for consideration, before this Commission, when considering the applicability of the provisions of Section 8 (amended) of Arbitration Act 1996 Act vis-à-vis CPA 1986, in the case of ' Sarbjit Singh Vs. Puma Realtors Private Limited', IV (2016) CPJ 126, wherein, it was observed as under:-
"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.
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."
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."
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.
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."
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.
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.
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.
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.
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."
20. It was authoritatively said that in view of Section 3 of the Act 1986, it is open to the consumers to approach the Consumer Foras, for redressal of their grievance, notwithstanding that she can get relief under any other Act. Similar findings, to the effect that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, has been upheld by the Hon'ble Supreme Court of India, in Civil Appeal bearing No.23512-23513 of 2017, vide order dated 13.02.2018.
21. In view of above findings, we can safely say that RERA and PAPRA will not debar the jurisdiction of this Commission in entertaining the complaint filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of Opposite Parties No.1 to 4.
22. Coming to the merits of the case, it is not in dispute that initially, Shop/Commercial Unit No.FF-16 having super area admeasuring 528.75 sq.ft. approx on First Floor in TDI Mall, Chandigarh was allotted to Opposite Party No.5 (Sh. Rajesh Goyal) and Opposite Parties No.1 to 4 executed Buyers Agreement dated 19.06.2006 (Annexure C-1) with Opposite Party No.5. The total sale consideration of the said unit was Rs.45 Lakhs. At the time of execution of buyers agreement, Opposite Party No.5 paid Rs.35 Lakhs to Opposite Party No.1 as recorded in the said agreement. Thereafter, the unit, in question, was purchased by the complainant from Opposite Party No.5, who paid entire sale consideration of Rs.45 Lakhs to Opposite Party No.5. Opposite Party No.5 to discharge its liability, paid remaining amount of Rs.10 Lakhs to Opposite Party No.1 on 15.11.2008. Thus, the entire amount of Rs.45 Lakhs stood paid to Opposite Party No.1 towards the unit, in question. No doubt, sale agreement dated 29.09.2008 (Annexure C-2) was executed between the complainant and Opposite Party No.5. It is also an admitted fact that the sale/transfer of the unit, in question, was endorsed in favour of the complainant vide endorsement dated 03.11.2008 (Annexure C-2). It is also not in dispute that delay in delivering possession of the unit, in question, occurred due to cumbersome procedure involved in taking various approvals and permission from Chandigarh Administration.
23. It may be stated here that on 16.08.2018, following order was passed by this Commission:-
"It is stated by Counsel for the parties that as on today, the shop, in question, is ready for possession and the complainant is ready to take possession. If that is so, the complainant is directed to approach at the site on Monday i.e. 20.08.2018 at 10.00 AM and get possession of the shop, in question. If there exists any defect in the construction, that will not be a ground to refuse the possession. If any defect(s) is there, a list be prepared by the complainant and the same be handed over to the Opposite Parties and photocopy of the same be also retained for furnishing before this Commission. The Opposite Parties will get only the letter of handing over of possession of the shop signed from the complainant, without insisting upon singing any other document(s) and without asking for any further payment. Other prayers will be looked into at the time of final hearing.
On request, the matter is adjourned to 13.09.2018 for further proceedings."
24. Perusal of aforesaid order shows that as on 16.08.2018, the unit, in question, was ready for possession and the complainant was ready to take its possession.
25. On the next date of hearing i.e. 13.09.2018, it was stated that in terms of aforesaid order dated 16.08.2018, possession of the unit, in question, had been handed over by Opposite Parties No.1 to 4 to the complainant on 31.08.2018. The said order dated 13.09.2018 reads thus:-
"In terms of order passed by this Commission on 16.08.2018, possession of the unit has been handed over by Opposite Parties No.1 to 4 to the complainant on 31.08.2018.
To probe chances of compromise, the matter is adjourned to 15.10.2018.
It is made clear that if settlement is not arrived at between the parties then arguments shall also be heard on the next date of hearing."
26. Thus, possession of the unit, in question, stood delivered to the complainant on 31.08.2018.
27. The only grievance of the complainant remains qua grant of compensation on account of delayed possession.
28. Admittedly, as per Clause 8 of the Buyers Agreement dated 19.06.2006 (Annexure C-1), possession of the unit, in question, was to be handed over on 31.03.2007 with a grace period of six months, subject, to force majeure and reasons beyond the control of Opposite Parties No1 to 4, including notice/order/restriction imposed by any Court/Chandigarh Administration/ concerned authority or by any Govt. or Semi-Govt. Department. Clause 8, being relevant is extracted hereunder:-
"8. That the possession of the Said Unit shall be handed over to the BUYER on March 31st 2007 with a grace period of six months, subject, however, to force majeure and reasons beyond the control of the SELLER AND THE CONFIRMING PARTY which shall include any notice/order/restriction imposed by any Court/ Chandigarh Administration/concerned Authority or by any Govt. or Semi-Govt. Department."
29. Clearly, possession of the unit, in question, was to be delivered to the buyer by 31.03.2007 or maximum by 30.09.2007, which was not done. Possession of the unit, in question, having been offered on 18.01.2016 vide letter (Annexure C-11), clearly, there is inordinate delay of around 8 years 3 months in offering possession of the unit, in question, to the complainant. Delay in offering possession to the complainant is an act of clear deficiency on the part of Opposite Parties No.1 to 4.
30. Not only above, it is also admitted on record that Opposite Party No.5, namely, Sh. Rajesh Goyal, received an amount of Rs.1,84,767/- towards compensation for delayed possession and he then issued a cheque dated 26.03.2010 for the aforesaid amount, which is at Page 43 of the complaint file as Annexure C-6, in favour of the complainant (Anju Gupta). Thereafter also, in the year 2012, the complainant received another cheque dated 08.10.2012 for an amount of Rs.2,11,500/- from Opposite Party No.2 - ICS Hotels Pvt. Ltd. (Annexure C-7) towards compensation for delayed possession. The factum of aforesaid two payments as compensation towards delay in offering possession of the unit, in question, is admitted. It is, thus, implied that possession of the unit, in question, was not ready uptil March 2010 or September 2012, for which, the complainant was duly compensated. Moreover, the Occupation Certificate qua the TDI Mall was admittedly issued by the Chandigarh Administration on 12.01.2016, where after only, the possession of the unit was offered to the complainant on 18.01.2016. Thus, it is admitted case of Opposite Parties No.1 to 4 that there was delay in offering possession of the unit, in question.
31. In our considered opinion, the complainant is certainly entitled to grant of compensation on account of delayed possession.
32. Now the question that arises for consideration, is, as to what amount of compensation for delayed possession, the complainant is entitled to and whether she was adequately compensated by opposite parties No.1 to 4 by paying the aforesaid amounts of Rs.1,84,767/- and Rs.2,11,500/- on that account uptil 08.10.2012. As already discussed above, Opposite Parties No.1 to 4 have admitted their liability on this account by paying the aforesaid amounts calculated at the rate of 11% p.a. towards compensation for delayed possession. Accordingly, in the instant case, the complainant has also prayed for interest @11% p.a., to which she is entitled to. No doubt, compensation for the delayed period, already received by the complainant by way of interest @11% p.a. uptil 08.10.2012 was just and adequate.
33. In our considered opinion, award of same rate of interest i.e. @11% p.a. (simple) on the deposited amount, which Opposite Parties No.1 to 4 had already paid to the complainant up-till 08.10.2012, would meet the ends of justice.
34. Now it is to be seen that for what period, the complainant is to be given the aforesaid interest @11% p.a. Admittedly, the complainant received compensation twice for delayed period in offering possession, firstly in March 2010 and secondly in October 2012. In her letter dated 16.11.2015 (Annexure C-10), the complainant specifically requested opposite parties No.1 to 4 to make payment of delayed possession in terms of earlier payments. The contents of aforesaid letter being relevant are extracted hereunder;-
"This is in reference to your payment of Rs.2,11,500/- for delayed possession of subjected Unit for a period of 6 months, twice earlier made to me, I would like to bring to your kind notice:
1. That due to the long delay in possession of the subjected unit you had earlier paid Rs.2,11,500/- for the delay period of 6 months. This amount was paid twice. You had promised that you will pay in future for the delayed period but the said amount has not been paid thereafter.
2. That we would like to bring to your notice that we have already made full payment of the unit as per agreement and there is no due outstanding against this unit.
3. Please make the payment of delayed possession in terms of earlier payments immediately."
35. The complainant while referring to her aforesaid letter, again reiterated her request asking for payment of delayed possession vide letter dated 15.02.2016 (Annexure C-14). Thus, it is clear that the complainant admittedly received compensation up-till 08.10.2012 and vide the aforesaid letter, she requested opposite parties No.1 to 4 to pay compensation for the delayed period subsequent thereto. In our considered opinion, award of compensation for the delayed period by way of interest @11% p.a. (simple), as stated above, whereof 08.10.2012 i.e. the date when the second cheque for an amount of Rs.2,11,500/- was issued in favour of the complainant, up-to the date of offer of possession i.e. 18.01.2016, would meet the ends of justice.
36. So far as the grievance of the complainant qua change of Unit No.16 to Unit No.15 as stated in Clause 3 of the Addendum Agreement (Annexure C-13) and thereby altering the size of the shop from 528.75 sq. ft. super area to 518 sq. ft. super area is concerned, it may be stated here that it was so provided in Clauses 5 & 6 of the Buyers Agreement dated 19.06.2006 (Annexure C-1) and under Clause 4 of Addendum Agreement, referred to above. As per Clause 5 of the Buyers Agreement, referred to above, Opposite Parties No.1 to 4 had the right to add, amend or change the floor plans/layout/elevation/area and Unit under sale was subject to the last sanctioned plan. Further as per Clause 6 of the same Buyers Agreement, the layout and area of the unit under sale was only tentative and the final area was to be measured on completion of the building and for the differential area, if any, the buyer was liable to pay the amount for the differential area. It may also be stated here that as per Clause 4 of above Addendum Agreement, the parties adjusted the accounts as per the area decreased/increased of the shop and on adjustment of the accounts, the parties had agreed that no claim remained pending towards each other of any of the parties. Therefore, the contention raised by the complainant qua above two issues has no substance particularly when he has already taken the possession of the unit, in question, on 31.08.2018, after showing her willingness to do so, as recorded in order dated 16.08.2018.
37. The complainant is also held entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment, and injury caused to her, for inordinate delay in delivering physical possession of the unit to her, by Opposite Parties No.1 to 4, by the date promised in the Agreement or the grace period of six months. In our considered opinion, grant of compensation in the sum of Rs.1,50,000/- on account of mental agony and physical harassment suffered by the complainant would serve the ends of justice.
38. Since neither any allegation has been leveled by the complainant against Opposite Party No.5 nor any relief claimed qua him, therefore, the complaint is liable to be dismissed against Opposite Party No.5.
39. No other point was urged by the Counsel for the parties.
40. For the reasons recorded above, the complaint is partly accepted, with costs against Opposite Parties No.1 to 4 and they are, jointly and severally, held liable and directed as under:-
(i) Execute and get registered the sale deed in respect of the unit, in question, within three months from the date of receipt of certified copy of this order. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant.
(ii) To pay compensation, by way of simple interest @11% p.a., on the deposited amount, to the complainant, w.e.f. 08.10.2012 up to the date of offer of possession i.e. 18.01.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @13% p.a. (simple), instead of 11% p.a. (simple), from the date of default i.e. w.e.f expiry of period of 45 days, till realization.
(iii) Pay compensation in the sum of Rs.1,50,000/- on account of mental agony, physical harassment and deficiency in service and Rs.55,000/- as litigation costs to the complainant, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amounts shall carry interest @11% p.a. (simple), from the date of filing the complaint till realization.
41. However, the same (complaint) has been dismissed against Opposite Party No.5 with no orders as to costs.
42. Certified Copies of this order be sent to the parties, free of charge.
43. The file be consigned to Record Room, after completion.
Pronounced.
30.04.2019.
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER Ad