State Consumer Disputes Redressal Commission
Gurpreet Singh vs Taneja Developers & Infrastructure ... on 6 January, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Misc. Application No.690 of 2019
In/and
Consumer Complaint No.79 of 2017
Date of Institution : 13.02.2017
Date of Reserve : 18.11.2019
Date of Decision : 06.01.2020
Mr.Gurpreet Singh son of Late Sh.Harcharan Singh, resident of House
No.1483-A, Sector 61, Chandigarh-160062.
....Complainant
Versus
1. Taneja Developers & Infrastructures Ltd. (TDI), through its
Managing Director having Regional Office at SCO 1098-1099, 1st
Floor, Sector 22-B, Chandigarh.
2nd Address for service, SCO 51-52, Sector 118, TDI City,
Chandigarh-Kharar Road, SAS Nagar, Mohali.
3rd Address for service : 10, Shaheed Bhagat Singh Marg, New
Delhi-110001.
2. Dewan Housing Finance Corporation Limited (DHFL), through its
Director, SCO 62, First Floor, Madhya Marg, above Punjab &
Sind Bank, Sector 26, Chandigarh-160019.
.....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Mr.Rajinder Kumar Goyal, Presiding Member
Present:-
For the complainant : Sh.Deepak Aggarwal, Advocate For Opposite party No.1 : Sh.Puneet Tuli, Advocate For Opposite party No.2 : Dismissed vide order dated 10.07.2018.Consumer Complaint No.79 of 2017 2
RAJINDER KUMAR GOYAL, PRESIDING MEMBER The complainant has filed this complaint seeking following directions to the opposite party No.1:-
a) to hand over the physical vacant possession of the flat, in question, complete in all respects i.e. after completion of development works including after issuance of occupation / completion certificate by the competent authority.
b) to refund Rs.91,040/- along with interest at the rate of 12% p.a. towards pre-earnest money interest withdrawn from complainant from 15.04.2013 to 10.07.2013 with interest especially when actual vacant possession, complete in all respects, was never issued (total interest amounting to Rs.41,422/- uptill 15.02.2017).
c) to direct opposite party No.1 not to charge any club membership charges and interest free maintenance charges of Rs.20,000/- as these charges are not part of Flat Buyer's Agreement;
d) to pay interest at the rate of 12% p.a. on service tax paid
by the complainant amounting to Rs.1,35,000/-
approximately on the total basic sale price of
Rs.36,00,000/- w.e.f. 01.01.2014 uptill giving the complete possession as the opposite party No.1 was to hand over the complete possession uptill 01.01.2014 and which has not been offered till date.Consumer Complaint No.79 of 2017 3
e) to direct the opposite parties to pay compensation of Rs.10 lacs to the complainant on account of mental agony, harassment and financial loss on the complainant and his family.
f) to pay litigation assessed as Rs.1,00,000/-.
g) any other relief which this Commission may deem fit and proper.
M.A. No.690 of 2019 (For Dismissal of Complaint)
2. This application has been filed by the counsel for opposite party No.1 for dismissal of the consumer complaint challenging the maintainability of the complaint in view of Sections 71, 79 and 89 of the Real Estate (Regulation and Development) Act, 2016 which came into force on 01.05.2017.
3. Reply to the application has been filed by the complainant by taking preliminary objections that the parties have already complied with number of orders passed by this Commission. Further, learned counsel for the complainant argued that this Commission has the jurisdiction to entertain the complaint as per the law laid down by the Hon'ble Supreme Court as well as Hon'ble National Commission. Hence, the application filed by opposite party No.1 be dismissed.
4. We have heard the arguments of the counsel for the parties and have carefully gone through the record.
5. In the present case the project in question was launched by opposite party No.1 and the agreement was executed between the parties on 20.08.2011, Ex.C-2, for allotment of residential Consumer Complaint No.79 of 2017 4 flat/apartment in question. The facts are not in dispute. The main stress of opposite party No.1 is only with regard to the maintainability of the complaint before this Commission since the RERA has come into force on the date of filing of the present complaint. It needs to be mentioned that provisions of Sections 2, 20 to 39, 41 to 58, 71 to 78 came into force with effect from 01.05.2016 and the provisions of Sections 3 to 19, 40, 59 to 70 and Section 79 to 80 came into force with effect from 01.05.2017. It is also an admitted fact that the complainant had entered into Residential Floor Allottee(s) Arrangement prior to the coming into force of the RERA and they had also booked the flat/apartment much earlier to the date of enforcement of RERA in the State of Punjab and even in the country, in the year 2011. Having failed to comply with the terms of the said Arrangement the complainant has approached this Commission for the illegal acts, omissions and commissions and adoption of unfair trade practice and various types of deficiencies in service and as such, they being 'consumers' and the opposite parties being 'service providers' have approached this Commission under the C.P. Act. It would be appropriate to reproduce the relevant provisions of Sections 71, 79, 88, 89 of RERA as under:-
"71. Power to adjudicate.-(1) For this purpose of adjudicating compensation under sections 12, 14, 18 and section 19, the Authority shall appoint in consultation with the appropriate Government one or more judicial officer(s) deemed necessary, who is or has been a District Judge to be an adjudicating officer Consumer Complaint No.79 of 2017 5 for holding an inquiry in the prescribed manner after giving any person concerned a reasonable opportunity of being heard.
Provided that any person, whose complaint in respect of matters covered under sections 12, 14, 18 and section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protection Act, 1986 (68 of 1986), on or before the commencement of this Act, he may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act.
(2).....
(3)....."
79. Bar of jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
88. Application of other laws not barred.--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.
89. Act to have overriding effect.-The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force." Some questions were raised by the 'consumers' with the Ministry of Housing and Urban Property Alleviation, Government of India. Under Frequently Asked Questions (FAQ) at Sr. Nos. 85 and 86 it has been observed as under:-
Consumer Complaint No.79 of 2017 6
"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."
In answer to question No.85 it has been stated that the jurisdiction of the Consumer Fora at District, State or National level has not been barred from the ambit of C.P. Act. Rather Section 71 of RERA provides the 'consumer', whose complaint in respect of matters covered under Sections 12, 14, 18 and Section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under Section 9 of the C.P. Act, an option to seek permission from the Fora, as the case may be, to withdraw the complaint pending before it and file an application before the adjudicating officer under the RERA.
Consumer Complaint No.79 of 2017 7
6. A perusal of Section 79 of RERA reveals that the provisions of said Act bar the jurisdiction of Civil Court. The Consumer Fora under the C.P. Act are not Civil Courts; rather, are performing the judicial functions, which are summary in nature. As such, bare reading of Section 79 of RERA makes it clear that the same is not applicable.
7. In answer to question No.86 it has been stated that the consumer/complainant can approach either of the two authorities i.e. the Consumer Fora under the C.P. Act or the authorities established under the RERA.
8. It is also relevant to mention that as per Section 3, the provisions of the C.P. Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Similarly Section 71 of the RERA has specifically mentioned about the applicability of the provisions, which falls under Section 12, 14, 18 and Section 19 of the C.P. Act and the first proviso to Section 3 of the RERA provides that the projects, which are ongoing on the date of commencement of the RERA and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of RERA. Section 88 of RERA says that application of other laws is not barred. The provisions of RERA shall be in addition to and not in derogation of the provisions of any other law for the time being in force. The provisions of Section 88 of the RERA and the provisions of Section 3 of the C.P. Act are almost identical, which means both the Fora have jurisdiction to entertain and Consumer Complaint No.79 of 2017 8 decide the matter, whichever come in their respective jurisdiction. Section 89 of the RERA provides that the provisions of RERA shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. However, there is no inconsistency between the provisions of the two Central Acts. The C.P. Act is applicable where there is deficiency in service and adoption of unfair trade practice, whereas the provisions of RERA have own field i.e. Section 12, 14, 18 and 19 of RERA. This makes it very much clear that there is no inconsistency in the provisions of both the Acts. Section 88 of RERA has clarified that application of other laws is not barred. The remedies are additional remedies under the RERA as well.
9. Moreover, by introduction of RERA, the jurisdiction of the C.P. Act is not specifically ousted. The scope and reach of the C.P. Act of 1986 has been considered by the Hon'ble Supreme Court in catena of judgments, some of the important ones are: Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243, Fair Air Engineers (P) Ltd. vs. N. K. Modi (1996) 6 SCC 385, Skypay Couriers Limited v. Tata Chemicals Limited (2000) 5 SCC 294, State of Karnataka vs. Vishwabharathi House Building Cooperative Society (2003) 2 SCC 412, CCI Chambers Cooperative Housing Society Limited Vs. Development Credit Bank Limited (2003) 7 SCC 233, Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (2004) 1 SCC 305, H.N. Shankara Shastry Vs. Assistant Director of Agriculture, Karnataka (2004) 6 SCC 230. Consumer Complaint No.79 of 2017 9
10. In M.Lalitha's case (supra), Hon'ble Supreme Court noticed the background, the object and reasons and the purpose for which the Act of 1986 was enacted. After referring to its earlier judgments in M.K. Gupta's case (supra) and N.K. Modi's case (supra), the Hon'ble Supreme Court observed as under:-
"11. The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and matters connected therewith. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of the 1986 Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
12. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the district, State and national level with wide range of powers vested in them. These quasi-judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non- compliance with their orders."
11. In Kishori Lal Vs. Chairman, Employees' State Insurance Corporation 2007(5) Recent Apex Judgments (R.A.J.) 68, the Hon'ble Supreme Court held as under:-
Consumer Complaint No.79 of 2017 10
"17.......... The trend of the decisions of this Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated."
12. Further in National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. (2012) 2 SCC 506, it has been authoritatively held by the Hon'ble Supreme Court that the protection provided to the consumers under the Act is in addition to the remedies available under any other Statute.
13. Similarly, State Consumer Disputes Redressal Commission Chandigarh, U.T. Chandigarh in Consumer Case No.659 of 2017 (Veena Ghai & Anr. v. Manohar Infrastructure & Constructions Pvt. Ltd.), which was decided along with bunch of similar other cases, vide order dated 28.06.2018, observed that RERA and PAPRA will not debar the jurisdiction of the Consumer Fora in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the opposite parties. It has been held as follows:-
"Further contention was raised by Counsel for the opposite parties that in the face of provisions of the RERA, under which the opposite parties have registered the project, in question, on Consumer Complaint No.79 of 2017 11 15.09.2017, it was not open to this Commission, to entertain and decide the present complaint. He further asserted that sufficient safeguard is provided under the provisions of RERA and if the complainants are feeling aggrieved of any action, on the part of the opposite parties, they may approach under the said Act (RERA) and not under 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, the opposite parties 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 the opposite parties 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.
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 Consumer Complaint No.79 of 2017 12 of unfair trade practice against the opposite parties. 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."
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.
In view of above findings, we can safely say that RERA and PAPRA will not debar the jurisdiction of this Commission in Consumer Complaint No.79 of 2017 13 entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the opposite parties. Further, in another judgment passed by the Hon'ble National Commission passed in Consumer Case No.1764 of 2017 titled as "Ajay Nagpal Vs. Today Homes & Infrastructure Pvt. Ltd." decided on 15.04.2019, wherein it has been held as under:-
"40. From the various decisions of the Hon'ble Supreme Court referred to above, the following principles emerge:-
(i) The Consumer Protection Act, 1986 is a supplement Act and not in derogation of any other Act.
(ii) Any Consumer who is aggrieved by any defect in goods purchased or deficiency in service as also regarding unfair trade practice, can approach the Consumer For a by filing the complaint under the Act.
Even a Class Action Complaint is permissible under the Act.
(iii) The Consumer Fora constituted under the Consumer Protection Act, 1986 are not Civil Courts.
(iv) The Consumer Fora can provide for the reliefs as contemplated under Section 14 of the Act.
(v) A Consumer cannot pursue two remedies for the same cause of action. However, if a Consumer has not approached for redressel of its grievance under the particular Statute, the Consumer can approach the Consumer Fora under the Consumer Protection Act. But, if the Consumer had already approached the Authority under the relevant Statute, he cannot simultaneously file any complaint under the Consumer Protection Act.
Consumer Complaint No.79 of 2017 14
(vi) Mere availability of a right to redress the grievance in a particular Statute will not debar the complainant/ Consumer from approaching the Consumer Fora under the Act.
(vii) Even though under Sections 14, 15, 18 and 19 of RERA, various provisions have been made which are to be followed by the Developer/Promoters and the rights and duties and the return of amount as compensation as also rights and duties of Allottees, yet same cannot mean to limit the right of the Allottee only to approach the Authorities constituted under the RERA, he can still approach the Consumer Fora under the Consumer Protection Act.
(viii) Section 71 of RERA which gives the power to adjudicate, does not expressly or impliedly bar any person from invoking the provisions of the Consumer Protection Act. It has also given a liberty to the person whose complaint is pending before the Consumer Fora to withdraw it and file before the RERA authorities.
(ix) Section 79 of RERA only prohibits the jurisdiction of Civil Court from entertaining any suit or proceeding in respect of any matter which can be decided by the Authorities constituted under the RERA. As the Consumer Fora are not Civil Courts, the provisions of Section 79 which bar the jurisdiction of Civil Courts, will not be attracted. So far as to grant injunction is concerned, only that power has been taken away Section 79. But, it does not, in any manner, effect the jurisdiction of the Consumer Fora in deciding the complaints. Both, the Consumer Protection Act, 1986 and the Real Estate (Regulation and Development) Act, 2016 are supplemental to each other and there Consumer Complaint No.79 of 2017 15 is no provision in the Consumer Protection Act, which is inconsistent with the provisions of RERA."
14. In view of law laid down in the above noted authorities, it is held that this Commission is competent to entertain and decide the present complaint and the provisions of RERA do not bar the jurisdiction of the Consumer Fora. Accordingly, the application filed by the opposite party No.1 is hereby dismissed.
Main Complaint
15. Brief facts, as set out in the complaint, are that the complainant booked a Floor bearing No.254-GF, admeasuring 1322 sq.ft. by paying 20% booking amount on the basic sale price of Rs.36 lacs. The said Floor was purchased by the complainant from Ritu Sharma/ Bharat Bhusan Sharma in re-allotment and all the rights accrued to the original allottee were assigned in favour of the complainant. On 20.08.2011, the Floor Buyer's Agreement was signed between the complainant and opposite party No.1 and the complainant opted Payment Plan C which is a subvention plan. The complainant availed loan of Rs.25,00,000/- from Dewan Housing Finance Ltd. Thereafter, the complainant paid a sum of Rs.2 lacs to opposite party No.1 through cheques. It has been further averred that apart from paying the basic sale price of the unit, the complainant deposited a sum of Rs.1,10,000/- towards EDC and Rs.50,000/- as PLC charges along with service tax. Against the total sale consideration, the complainant has deposited 95% amount of the unit/FLoor and the last instalment of Rs.1,80,000/- i.e. 5% was to be paid at the time of possession. As per Consumer Complaint No.79 of 2017 16 Clause E of the agreement, the complainant was not liable to pay any EMI or EMI interest on the distributed loan amount till offer of possession or till 24 months from the date of first disbursement of loan amount. Vide letter dated 15.04.2013, opposite party No.1 offered the possession to the complainant without completion of the development works and directed to pay the final amount of Rs.5,04,180/- within 30 days, failing which it shall attract interest at the rate of 21% and holding charges of Rs.10/- per sq.ft. In the letter it was also stated that now onwards complainant has to pay EMI and interest against loan amount. Immediately after that the complainant had to pay Four Pre-earnest money interest instalments of Rs.22,760/- each. Before taking over the possession, the complainant visited the site and clicked the photographs which were sent via e-mail dated 07.05.2013 and letter dated 09.05.2013 to opposite party No.1 and requested opposite party No.1 to withdraw the letter of paper possession dated 15.04.2013 and issue a fresh letter on completion of construction work with amended final account statement. The complainant also detailed the discrepancies in the unit. The complainant requested the opposite parties through email dated 13.05.2013, 20.05.2013, 24.05.2013 and 28.05.2013 to offer inspection and not to charge pre-EMI. However, opposite party No.1 ignored all the requests and representations of the complainant and asked to clear the pending dues vide its letter dated 23.05.2013. It has been further averred that earlier a complaint bearing CC No.44 of 2013 was filed before the State Commission, U.T. Chandigarh at Chandigarh which was partly accepted. The order was Consumer Complaint No.79 of 2017 17 challenged before the Hon'ble National Commission who disposed of the same vide common order dated 25.02.2016 setting aside the order passed by the State Commission, Chandigarh and complaint was returned to the complainant for filing it before the appropriate Forum. Despite repeated requests and reminders, the opposite party No.1 is unable to handover the possession as per terms and conditions of the agreement. Alleging deficiency in service and unfair trade practice, the complainants filed the present complaint seeking all the above mentioned reliefs.
16. Upon notice, opposite party appeared and filed its written statement taking preliminary objections that one Ritu Sharma and her husband Bharat Bhushan Sharma approached opposite party No.1 and got themselves registered for offer of allotment of a built-up floor, measuring 200 sq. yards in its project in Sector 110-111, SAS Nagar, Mohali. As they were not having sufficient funds to make the payment of built-up floor, therefore, they opted Bank Subvention Plan and made the payment of Rs.7 lakhs only at the time of their registration. As per Subvention Plan the complainant was to pay 20% of the consideration money at the time of registration and balance to be disbursed by the Bank. A provisional allotment letter was issued in the name of the Ritu Sharma and Bharat Bhushan Sharma on 26.07.2011. Smt. Ritu Sharma and Sh.Bharat Bhushan Sharma submitted an application on 20.08.2011 and requested to transfer their rights in favour of the complainant. The rights were transferred in the name of the complainant on 20.08.2011 itself. The present complaint cannot be Consumer Complaint No.79 of 2017 18 adjudicated by this Commission as the complaint requires voluminous evidence for proving / disproving the allegations leveled in this complaint. The complainant is a potential user of the built-up floor allotted to him and he cannot be termed as 'consumer' as per the Act. On merit, it is submitted that as per the account statement supplied along with the offer of possession dated 15.04.2013 and further interest accrued on the delayed payment is payable by the complainant. The complainant did not come forward to clear the dues. It has been contended that number of allottees have already taken the possession of built-up floors in the same block and have shifted their families. The complainant is liable to make the payments of due amount as per the account statement supplied along with the offer of possession. It has been further contended that all the basic facilities like road, water, sewage and electricity are available. There is no deficiency in service or unfair trade practice on the part of opposite party No.1. Rest all the allegations as leveled by the complainant in his complaint has been denied and prayed to dismiss the complaint with costs.
17. To prove his claim,the complainant has tendered in evidence his affidavit as Ex.C-A along with documents as Ex.C-1 to Ex.C-4, Ex.C-5(colly), Ex.C-6 to Ex.C-8, Ex.C-9(colly), Ex.C-10(colly), Ex.C-11 to Ex.C-14.
18. On the other hand, opposite parties tendered in evidence the affidavit of Sh. Ashish Kumar, Authorized Signatory as Ex.OP-A along with documents as Ex.OP-1 to Ex.OP-11.
Consumer Complaint No.79 of 2017 19
19. I have heard the learned counsel for the parties and have gone through the record carefully.
20. Learned counsel for the complainant argued that the complainant got booked Floor No.254-GF, admeasuring 1322 sq.ft. after from the original allottee. All the rights were transferred from the original allottee to the complainant. The total sale consideration of the unit was fixed as Rs.36,00,000/-. After transfer of the unit, a Floor Buyer's Agreement was signed between the complainant and opposite party No.1, wherein the complainant chose Payment Plan C i.e. Subvention Plan. According to which, opposite party No.1 was to deposit the pre-EMI to the Bank till the delivery of the possession as the complainant availed a housing loan of Rs.25,00,000/- from the DHFL. The complainant further deposited a sum of Rs.1,10,000/- towards EDC and Rs.50,000/- as PLC charges along with service tax. In this way the complainant has deposited 95% of the total sale consideration and the balance 5% was to be paid at the time of possession. However, the possession offered by opposite party No.1 vide letter dated 29.04.2013 just to fill the gap of incompletion and to evade themselves to give the pre-EMI, which is the liability of opposite party No.1 as per the terms of the agreement. After inspecting the site, the complainant found many discrepancies and asked opposite party No.1 to remove the same and cancel the possession letter till the completion, which the opposite party No.1 failed to do so, which amounts to deficiency in service and unfair trade practice on its part and prayed to allow the complaint by giving all the reliefs as prayed. Consumer Complaint No.79 of 2017 20
21. Per contra, it has been contended by the learned counsel for the opposite parties that the complainant is a potential user and cannot be termed as a 'consumer'. The complainant has accepted all the terms and conditions of the agreement. Accordingly, the present complaint is automatically nullified. Further, the complainant was offered possession of the unit, however, he did not come forward to take the possession of the unit. Also, the complainant has not paid his outstanding dues. The allegations for non-completion of the unit are baseless as number of allottees have been shifted in the same building/ tower where the complainant was allotted the unit. The possession was offered to the complainant on 15.04.2013 i.e. within the stipulated period. There is no deficiency in service or unfair trade practice on its part. Complaint is without merit and it be dismissed with costs.
22. I have given my thoughtful consideration to the contentions raised by the parties and have carefully gone through the record.
23. First of all, I would like to dispose the preliminary objections raised by the opposite party No.1 that the complainant does not fall within the definition of 'consumer' as he purchased the unit for investment purposes/earning money.
24. In this regard, it is relevant to mention that there is no evidence from the side of the opposite party No.1 to prove that the complainant is indulging in sale purchase of property for commercial purpose and simple assertion in this regard in the reply of the opposite party No.1 not sufficient to prove this fact. Hon'ble National Commission in M/s Consumer Complaint No.79 of 2017 21 IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainant or any one of them had booked the subject plot in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already said above, there is no evidence led by the opposite parties to prove that the complainant indulged in sale purchase of properties and that they purchased the unit, in question, for further sale or for earning profits. Accordingly, the above said objection/contention of the opposite party No.1 is also rejected and the complainant is held to be 'consumer', under the Act.
25. Another objection raised by learned counsel for the opposite party No.1 that the complaint involves intricate question of law and facts that cannot be decided in the summary proceedings. In case we go through the pleadings of the parties, the complainant applied to purchase one unit with the opposite party No.1 and had paid 95% amount against the total sale consideration as per Allotment Letter Ex.C-5(colly) & Ex.C-6 but the opposite party No.1 had failed to deliver Consumer Complaint No.79 of 2017 22 the possession of the plot within the time frame. It is only the interpretation of agreement executed the complainant and opposite party No.1 and then to see whether there is any deficiency in service on the part of the opposite party No.1? We do not see that any complicated questions of law and facts are involved, which cannot be adjudicated by this Commission. In this regard, we are fortified by the judgment of 'Dr.J.J.Merchant and Ors. V. Shrinath Chaturvedi' 2002(6) SCC 635, wherein it was held that the State Commission and District Forum are headed by retired High Court Judges and Officers of District Judge level and in our view, this is not such a case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion.
26. Admittedly, the original allottee namely Smt. Ritu Sharma and Sh.Bharat Bhushan Sharma booked a residential unit at Ground Floor by paying Rs.7,00,000/- in the project of opposite party No.1 as per Ex.C-1. The said unit was purchased by the complainant from Smt. Ritu Sharma and Sh.Bharat Bhushan Sharma. A Floor Buyer Agreement was executed between the complainant and opposite party No.1 on 20.08.2011, wherein the complainant was allotted Floor No.254, Ground Floor, measuring 122.81 sq.mtrs. As per Clause 1 of the agreement, the allottee had to pay 20% booking amount and 5% at the time of possession and balance 75% was to be financed by DHFL and on the loan amount the allottee was not liable to pay EMI or Interest on the disbursed amount till the offer of possession. The relevant condition is mentioned hereunder:-
Consumer Complaint No.79 of 2017 23
"1 The Floor Allottee shall pay only 20% booking amount and 5% on possession of the value of floor thereafter the balance basic sale amount i.e. 75% shall be payable by the DHFL or other builder approved Banks/Financial Institutions on behalf of floor Allottee as per terms and conditions settled between the company and DHFL or other builder approved Banks/Financial institutions. The company has agreed that there shall be NO EMI AND NO INTEREST on the disbursed loan amount till the offer of possession of floor by the company or till 24 months from the date of first disbursement of loan amount, whichever is earlier. This scheme shall, however be applicable in case where the floor Allottee submits the necessary documents / papers, at the time of booking, to the DHFL or with other builder approved banks and is found eligible for obtaining of loan for the purchase of Floor. In case loan amount sanctioned is lesser than the 75% of the value of the floor then floor Allottee shall be required to make the balance payment i.e.75% of the value of Floor - Sanctioned Loan as and when demanded by the Company. (This clause is applicable in case floor Allottee opt Payment Plan-C as per schedule I))."
27. As per Clause 4, the allottee has already paid a sum of Rs.7,00,000/- against the unit, in question. Further as per Clause 9 the possession of the unit was to be delivered within 36 months with grace period of 6 months from the date of the agreement. The relevant Clause 9 is reproduced hereunder:-
"9. That the possession of the said premises is likely to be delivered by the company to the Floor Allottee within a period of 36 months with grace period of 6 months from the date of this agreement subject to force majeure circumstances and on receipt of all payment punctually as per agreed terms and on receipt of complete payment of the basic sale price and other Consumer Complaint No.79 of 2017 24 charges due and payable up to the date of possession according to the payment plan applicable to him. The Company on completion of the construction shall issue final call notice to the Floor Allottee who shall within 30 days thereof, remit all dues and take possession of the Floor. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company. The Allottee would be liable to pay holding charge @Rs.10/- per sq.ft. per month if he fails to take possession within 30 days from the date of issue of offer of possession."
28. The complainant opted Payment Plan C. Against the total sale consideration, the complainant has deposited a sum of Rs.32,70,000/- as per Final Statement of Account, Ex.C-6. The complainant vide letter dated 29.04.2013, Ex.C-8, in reply to the letter of offer of possession, asked opposite party No.1 to provide the copy of agreement wherein the IFMS deposit of Rs.20,000/- and Club Membership of Rs.50,000/- is reflected. Further as per letter dated 09.05.2013, Ex.C-9(colly), the complainant has asked opposite party No.1 to withdraw the letter dated 15.04.2013, wherein the complainant was offered the possession as there were many discrepancies in the unit allotted to him. The details of the discrepancies have also been detailed in the said letters. The complainant vide Ex.C-10(colly) sent various e-mails to opposite party No.1 to resolve the issue and asked to withdraw the letter dated 15.04.2013. Initially, the matter was decided by the State Commission, Consumer Complaint No.79 of 2017 25 U.T. Chandigarh vide order dated 21.10.2013, which was challenged by opposite party No.1 before the Hon'ble National Commission which was allowed and the complaint was returned to the complainant to approach the appropriate Forum. Accordingly, the complaint was filed by the complainant before this Commission.
29. It is not disputed that vide letter dated 15.04.2013, the opposite party No.1 offered the possession to the complainant and send reminder for making the due payments and Rs.32,70,000/- has been received by opposite party No.1 against the total sale consideration. However, the opposite party No.1 has failed to prove any cogent evidence that the project has been completed. Even no Completion as well as Occupation Certificate has been placed by opposite party No.1 in its evidence.
30. From the perusal of the above, I am of the view that the possession offered to the complainant without obtaining any requisite approvals/ Completion Certificate / Occupation Certificate from the competent authorities is just a paper possession just to cover up the lapse committed on its part. The possession offered vide letter dated 15.04.2013 is no possession if no Completion / Occupation Certificate is obtained by the builder/opposite party No.1. Without issuance of these certificates in proper manner, a builder cannot be said to be in a legal position to hand over possession of a particular property. Thus, the offer of possession made by the opposite party No.1, vide above said letter, is held to be just a paper transaction, without any substance in it.
Consumer Complaint No.79 of 2017 26
31. The Hon'ble National Commission in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) decided on 13.06.2018, categorically held that legal possession cannot be delivered in the absence of Completion Certificate by the Competent Authority. It was held in Para No.5 as follows:
5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."
32. The net result remains that the opposite party failed to deliver possession of the unit to the complainant within the stipulated period. All the above facts and circumstances clearly prove that the opposite party has not complied with the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). As per Section 3 (General Liabilities of Promoter) of the PAPRA, they were required to make full and true disclosure of the nature of their title to the land, on which such colony is developed or such building is constructed or is to Consumer Complaint No.79 of 2017 27 be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days' notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, there is no evidence on record, from which it can be proved that they complied with Section 3 of the PAPRA.
33. As per Section 5 (Development of land into Colony) of PAPRA, the opposite party was liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission. So, they also violated Section 5 of PAPRA.
34. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats/units, but no evidence has been led on the record by the opposite party to prove that any account has been maintained by them in this respect. As such, the opposite party also violated Section 9 of the PAPRA.
35. The opposite party had been collecting huge amounts from the buyers for the development of the project. The opposite party is not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the agreement. As Consumer Complaint No.79 of 2017 28 already discussed above, the opposite party has miserably failed to comply the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not completing the plot/delivering its possession within the agreed period amounts to deficiency in service on the part of the opposite party.
36. The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainant has made payment of substantial amount to the opposite party, with the hope to get the possession of the flat in a reasonable period. The circumstances clearly show that the opposite party made false statement of facts about the goods and services i.e. allotment of flat and delivery of possession in a stipulated period. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the flat booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite party i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainant to book the Consumer Complaint No.79 of 2017 29 flat, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainant is a deposit held by the opposite party in trust of complainant and it should be used for the purpose of building the plots, as per Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In these circumstances, the complainant is entitled to get compensated for non- delivery of possession to the complainant within the prescribed period.
37. In view of above discussion, the complaint is partly allowed and following directions are issued to the opposite party No.1 as under:-
i) to hand over the physical possession of plot No.254, TDI City, Mohali as per the agreement dated 20.08.2011, by providing Completion / Occupation Certificate, subject to payment of balance sale consideration, if any, as per agreement, without interest or penalty.
ii) to pay pre-EMI interest till the offer of possession as per relief (i).
It is made clear that the pre-EMI paid by the Consumer Complaint No.79 of 2017 30 complainant to DHFL be adjusted in the balance outstanding towards the complainant.
iii) to pay Rs.45,000/- as compensation on account of mental agony and harassment as well as litigation expenses;
38. Arguments in this complaint were heard on 18.11.2019 and the order was reserved. The certified copies of the orders be communicated to the parties, as per rules.
39. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER January 6th ,2020 parmod